Citation Nr: 0007094 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-09 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for arthritis of the cervical and lumbar spine, claimed as post-traumatic arthritis. 2. Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to January 12, 1998. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse, and appellant's daughter ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from November 1942 to October 1945 and from August 1950 to August 1951. The appellant was a prisoner of war (POW) of the German Government from October 1943 to May 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 1995 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). The appellant, his spouse, and his daughter appeared at a hearing held at the RO on June 15, 1995. A transcript of that hearing has been associated with the record on appeal. The appellant and his spouse appeared at a hearing held at the RO on April 17, 1997. A transcript of that hearing has been associated with the record on appeal. After the appellant perfected his appeal, the Supplemental Statement of the Case (SSOC) of November 1997 assigned a 50 percent disability rating for his PTSD effective April 28, 1994, the date of the appellant's claim. This is not a full grant of the benefit sought on appeal because a higher disability rating is available under Diagnostic Code 9411. Therefore, this issue is still before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (After the veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). A rating decision of February 1999 assigned a 100 percent disability rating effective January 12, 1998. This is the maximum disability rating available under Diagnostic Code 9411, and, as such, is a full grant, from January 12, 1998 to the present, of the benefit sought on appeal. Therefore, the issue on appeal has been rephrased as shown on the first page of this decision. FINDINGS OF FACT 1. The appellant's claim for presumptive service connection for a POW for post-traumatic osteoarthritis is plausible, and the RO has obtained sufficient evidence for an equitable disposition of this claim. 2. The appellant has current diagnoses of osteoarthritis, spinal stenosis, and degenerative joint disease of the cervical and lumbar spine. 3. The appellant has submitted competent lay evidence that he suffered trauma to his spine during service. 4. The veteran does not have post-traumatic arthritis of the cervical or lumbar spine; there is no evidence of arthritis of the cervical or lumbar spine to a compensable degree within a year of service; and arthritis of the cervical or lumbar spine was not the result of disease or injury in service. 5. The appellant's claim for an increased disability evaluation for PTSD is plausible, and sufficient evidence has been obtained for correct disposition of this claim. 6. Prior to January 12, 1998, the appellant's service- connected PTSD was manifested by difficulty in establishing and maintaining effective relationships, mood disturbances such as depression and anxiety, and nightmares, resulting in considerable social and occupational impairment. CONCLUSIONS OF LAW 1. The appellant has presented a well-grounded claim for presumptive service connection for a POW for post-traumatic osteoarthritis, and VA has satisfied its statutory duty to assist him in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. Entitlement to service connection for arthritis of the cervical and lumbar spine, claimed as post-traumatic arthritis, is not established. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (1999). 3. The appellant has stated a well-grounded claim for an increased disability evaluation for PTSD, and VA has satisfied its duty to assist him in development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 4. The criteria for a disability rating in excess of 50 percent for PTSD prior to January 12, 1998, were not met since April 28, 1994. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background At the appellant's October 1945 separation examination, no musculoskeletal defects were noted. The appellant reported a history of malnutrition, although no physical defects from malnutrition were present at the time of the examination. At the August 1950 entrance examination for the appellant's second period of service, no significant abnormalities [NSA] were noted with respect to the appellant's neck or spine. In a May 1976 statement, W. T. Ward, M.D., indicated that in May 1973 he had treated the appellant for complaints of sciatic pain on the right side. Dr. Ward diagnosed questionable degenerative disc at L4-5. He added that, in September 1973, x-ray examination had revealed degenerative arthritis. Dr. Ward noted a past history [PH] of a World War II injury. In June 1982 Stephen Miller, M.D., noted that the appellant had been followed since 1979 for complaints of neck and low back pain. Dr. Miller explained that a Dr. Holmes had opined that the appellant's pain was secondary to degenerative disc disease in the cervical and lumbar spines. In November 1989 the appellant filed a claim for entitlement to service connection for arthritis and degenerative disc disease. The RO obtained medical records from Lamar Fleming, M.D., documenting treatment from January 1981 to April 1989; medical records from Dr. Miller, documenting treatment from June 1982 to June 1988; and the reports of VA examinations in March and January 1990. Evidence already of record included the appellant's service medical records, a July 1946 examination report from Hartwell Joiner, M.D., a May 1976 statement from Dr. Ward, and the report of a January 1946 VA examination. The RO, in its April 1990 rating decision, denied service connection for arthritis of the neck and lower back based on its review of the evidence then of record. The RO specifically held that arthritis of the neck and back was not shown in service and was not shown to be definitely related to any trauma associated with POW status. The appellant was notified of that decision and of his appellate rights. He did not appeal. VA outpatient treatment records show occasional treatment of the appellant, from January 1990 to September 1997, for conditions including spinal stenosis, degenerative joint disease [DJD] of the spine, low back pain, history of low back pain [LBP], multilevel degenerative disc disease with probably small right paramedian disc herniation at T12-L1, degenerative disc disease [DDD], arthritis, complaints of an arthritic condition in his neck, complaints of neck problems, cervical degenerative joint disease, degenerative joint disease of the lumbar spine, arthritis and degenerative disc disease [DDD] of the lumbar spine. At a March 1990 VA POW examination, the appellant reported a history of a lower back injury while in captivity. The examiner diagnosed degenerative disc disease of lumbar spine. The appellant reported that he was unable to recall any specific injury. He complained of daily low back pain. In May 1991 the appellant was provided physical therapy as a VA outpatient for complaints of low back pain [LBP]. The appellant reported a 15-year history of low back pain. At an August 1992 VA orthopedic and otolaryngologic [ENT] examination, the appellant reported that in October 1943 his plane was shot down over Germany and that he had to parachute to safety. He stated that, on landing, he had injured his back and neck. He explained that, when he landed, he struck a railroad iron that held up grapevines. He stated that his lower back was injured and that he was "almost paralyzed." He stated that, after two days, he recovered the use of his lower extremities but that he had intermittent low back discomfort ever since the injury. The examiner diagnosed spondylosis of cervical vertebrae, degenerative intervertebral disc disease of cervical vertebrae, spondylosis of lumber vertebrae, and degenerative intervertebral disc disease of lumbar vertebrae. In April 1994 the appellant was treated as a VA outpatient for complaints of increasing problems with nerves. The Physician Assistant [PA] diagnosed anxiety. At the June 1995 hearing, the appellant testified that during service his aircraft was shot and caught on fire. He stated that he parachuted from the plane. He stated that he landed on his spine in a vineyard. He added that when he was captured he was beaten with broomsticks and billy clubs by the townspeople of Frankfurt, Germany. He stated that as a POW he had gone without food or vitamins and that he had had aches and pains. He stated that he had been diagnosed first with arthritis by a Dr. Ward in approximately 1947. He stated that Dr. Ward is deceased. The appellant complained of nightmares about his aircraft being on fire and about being mistreated as a POW and flashbacks. He stated that he had nightmares at least once per week. He stated that his memory was impaired. He stated that he startled easily. He stated that he angered easily. He stated that, when he became upset, he yelled and cursed. He stated that he had crying spells. The appellant stated that he preferred to be alone and that he did not have many friends. He stated that when visitors, including relatives, came to his home, he would occasionally retreat to his room. He stated that he was close to his family and that he had some friends in one of the veterans' organizations. He explained that he was able to relate to the other veterans. He stated that was unable to tolerate children for long periods. He stated that although he cared for his family he did not show his emotions. He stated that he was unable to attend baseball games because he avoided crowds. He stated that he was unable to watch war movies because they brought back memories. He stated that reports about Vietnam veterans upset him because he felt that they had been treated unfairly. He stated that his daily routine consisted of rising at approximately 6:00 a.m., visiting his daughter for a short period, and returning home to watch television. The appellant's spouse testified that the appellant was in pain due to arthritis. She stated that he went to the hospital for treatment. She stated that he had complained frequently for several years about pain in his neck but that she had suspected him of malingering. She stated that she and the appellant had been married for forty-nine years. She stated that she and the other family members had to "tiptoe around" the appellant because he angered easily. She stated that family gatherings were limited because of the appellant's irritability and violent temper. She stated that their daughter spent much time with them and drove them places because the appellant was difficult to control. She stated that the appellant slept restlessly and that, although she slept in a separate room, the appellant often woke her by making noise while he slept. She stated that the appellant was unable to cope with stressful situations and usually retreated from them in denial. She added that he was incapable of making decisions. She stated that he tended to dwell on his war experiences and his nightmares. The appellant's daughter confirmed the testimony of the appellant's spouse. She stated that she saw her parents almost every day. She stated that she usually took them to a restaurant for breakfast. She stated that the appellant was irritable. She stated that he isolated himself at large family gatherings. She stated that the family now planned only smaller gatherings. At a June 1995 VA mental disorders examination, the appellant was very tense and restless. He quivered during the examination. He complained of depression and nervousness. He stated that he was unable to tolerate crowds. He stated that he shook and trembled. He stated that he was unable to drive because he could not tolerate the noise, and he preferred to be alone. He stated that although he and his family, including his grandchildren, were close, he was unable to tolerate being around the grandchildren. He explained that he would leave them and go to his room alone. He stated that he had difficulty sleeping because of nightmares. The examiner noted that the appellant was very tense and tremulous. The appellant's thought processes were normal. There were no delusional or hallucinatory elements. The appellant's mood was normal. His sensorium was intact. The examiner diagnosed PTSD. At the April 1997 hearing, the appellant testified that during service he had bailed out of an aircraft that was on fire. He stated that his parachute had had holes in it from the fire; so, he had descended rapidly. He stated that he landed in a vineyard and that one of the stakes in the vineyard struck him on the lower lumbar spine area. He stated that he had been partially paralyzed by the landing. He stated that civilians had carried him to the civilian jail. He stated that afterwards he was marched through town and that the civilians had thrown rocks, which struck him in the back. He stated that he had been held as a POW for 21 months. He stated that he had had problems with his back ever since he had bailed out of his plane. He stated also that it had been "quite awhile after [he] got out of service that [he] had the back problem." He stated that he did not get treatment for the back problem because he was "too busy trying to make a living." The appellant stated that he had difficulty sleeping. The appellant complained of nightmares about his airplane being on fire and his crew dying. He stated that he often woke himself from his nightmares by yelling. He stated that he did have difficulty with crowds and spent most of his time alone. He stated that he did not have any hobbies other than reading. He stated that, although he loved to watch baseball games, he was unable to attend any because of crowds and loud noise. He stated that he and his spouse occasionally dined out at locations that were not crowded and did not require waiting in line. He stated that his spouse irritated him. He added that he had five grandchildren but he was only able to spend a couple of hours with them at a time because of his irritability. He stated that when he drove his car he was easily angered. He stated that he had thought about killing others. The appellant's spouse stated she no longer slept in the same room as the appellant because he was restless and because he yelled during his nightmares. She stated that the appellant was irritable. She stated that their grandchildren made the appellant nervous. She stated that she and the appellant did not have visitors. She stated that, when the appellant drove more often, he would drive off to spend time by himself. In an April 1997 statement, a VA physician stated that she treated the appellant for hyperlipidemia, coronary artery disease, severe spinal stenosis, degenerative joint disease, and osteoarthritis. She noted that the appellant had been a POW for two and one-half years. She stated that during this time he had endured gunshot wounds, severe beatings, and suffered extreme malnutrition. She opined that the appellant's degenerative joint disease, osteoarthritis, and spinal stenosis "could be definitely be [sic] related" to the physical trauma and protein-caloric malnutrition that he endured as a POW. In an April 17, 1997 statement, the appellant stated that he suffered a great deal of emotional pain, guilt, self-doubt, distrust, anger, frustration, fear, loneliness, and powerlessness because of his POW experience. He stated that he was degraded and abused by the enemy and that, after the war, Americans were ungrateful. He stated that he was unable to establish deep, lasting relationships with others and that he was unable to discuss his emotions. On May 12, 1997, the appellant underwent psychological testing as a VA outpatient for PTSD. The appellant reported difficulties including anxiety, depression, nightmares, sleep disturbance, irritability, interpersonal conflict, and isolation. The examiner noted that the appellant was retired and living with his spouse of more than fifty years. The appellant's speech was logical and goal-directed. There were no signs of a formal thought disorder. His affect was somewhat constricted, and he appeared both anxious and depressed. He became tearful at several points during the interview when discussing his experiences during World War II. He denied current suicidal or homicidal ideation. Overall test results suggested the presence of highly significant levels of emotional distress, which were consistent with PTSD and were manifested by the presence of chronic worry, anxiety, flashbacks, avoidance of trauma- related stimuli, nightmares, intrusive thoughts, and agitation. Additionally, there appeared to be the presence of significant levels of clinical depression that would be indicative of a diagnosis of Major Depressive Disorder and/or Dysthymic Disorder, as well as significant personality pathology. At a July 1997 VA Compensation and Pension [C&P] examination, the appellant complained of low back pain and stiffness. The examiner diagnosed degenerative joint disease of the lumbosacral spine with pain and limitation of motion, severe central canal stenosis at L4-5, and moderate central canal stenosis at L2-3, L3-4. The appellant was obviously depressed. He cried when discussing his experiences as a POW. He stated that his depression and nightmares had gotten worse. He stated that he was unable to sleep. He added that he did not get along well with his spouse. The appellant's spouse stated that the appellant had provided an accurate description of their life. She stated that the appellant did not appreciate her and often made harsh comments. The VA psychiatrist noted that the appellant's thought processes were normal and that there were no delusions or hallucinatory elements. The appellant's mood was very depressed. His sensorium was intact. He was competent. The examiner diagnosed PTSD. In a September 1997 addendum to the July 1997, the examiner, who had diagnosed the appellant with degenerative joint disease of the lumbosacral spine with pain and limitation of motion, severe central canal stenosis at L4-5, and moderate central canal stenosis at L2-3, L3-4, stated he had reviewed the appellant's claims folder. The examiner opined that it was less than likely that the appellant's disabilities were the result of trauma or nutritional deficiency during the appellant's POW experience. The examiner added that it was more than likely that the appellant's disabilities were due to degenerative joint disease [DJD]. He stated that he had seen similar and even worse degenerative joint disease conditions on patients who were never POWs and never had nutritional deficiencies. He added that the appellant's spinal stenosis was due to the degenerative joint disease. II. Legal Analysis A. Arthritis of the cervical and lumbar spine Service connection may be established for a current disability based on different legal theories of entitlement. "Direct" service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In general, establishing "direct" service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (1999). Service connection for arthritis may be established based on a legal "presumption" by showing that the condition manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the case of a veteran who is a former POW and who was interned for not less than 30 days, certain diseases which become manifest to a degree of at least 10 percent at any time after active service, shall be considered to have been incurred in or aggravated by service, notwithstanding that there is no record of such disease during the period of service. These diseases include post-traumatic arthritis. This presumption can be rebutted where there is affirmative evidence to the contrary of intercurrent injury or disease. 38 U.S.C.A. § 1112(b) (West 1991); 38 C.F.R. §§ 3.307, 3.309(c) (1999). This last basis is the one on which the veteran claims entitlement. He does not contend, nor does the evidence show, that arthritis developed during service nor that it was manifest to a degree of 10 percent within a year of service. Service connection for arthritis of the neck and back was denied by the RO in April 1990. The veteran did not appeal that denial. Ordinarily, such a denial would be final, and new and material evidence would be required to reopen it. 38 U.S.C.A. §§ 7105(c), 5108 (West 1991); 38 C.F.R. §§ 3.160(d), 3.156 (1999). However, new and material evidence is not required to reopen a claim of a former POW interned not less than 30 days for those diseases entitled to presumptive service connection. See Yabut v. Brown, 6 Vet. App. 79, 82 (1993). All that is required is that the former POW present a well-grounded claim. Id. Where a former POW claims disability compensation, omission of history or findings from clinical records made upon repatriation is not determinative of service connection. 38 C.F.R. § 3.304(e) (1999). Special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. Id. The circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the POW experience. Id. In the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 1991). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Generally, a well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. App. at 81. In general, a veteran's evidentiary assertions are accepted as true for the purpose of determining whether a well-grounded claim has been submitted. King v. Brown, 5 Vet. App. 19, 21 (1993). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting the definition of a well-grounded claim set forth in Caluza). The third element may be established by the use of statutory presumptions. Truthfulness of the evidence is presumed in determining whether a claim is well grounded. Caluza v. Brown, 7 Vet. App. 498, 504 (1995); aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). The evidentiary basis to establish a presumption of entitlement to service connection may be medical evidence, competent lay evidence, or both. 38 C.F.R. § 3.307(b) (1999). The appellant's service records show that he was a POW. In April 1997 a VA physician opined that the appellant's osteoarthritis "could be definitely be related" to the physical trauma and malnutrition that the appellant endured as a POW. The only requirement for a well-grounded claim is competent medical evidence of a diagnosis of post- traumatic osteoarthritis in a former POW. See Brock v. Brown, 10 Vet. App. 155, 162 (1997) (competent evidence of the current existence of a presumptively service-connected disease with an open-ended presumption period is sufficient to present a well grounded service connection claim as to that disease, fulfilling the Caluza requirements of evidence of service incurrence and medical nexus). The appellant having stated a well-grounded claim for presumptive service connection, the Department has a duty to assist in the development of facts relating to the claim. 38 U.S.C.A. § 5107(a) (West 1991). In this case, medical records have been obtained and examinations provided. Therefore, VA has satisfied its duty to assist the veteran in the development of this claim. The regulations regarding presumptive service connection do not provide for an automatic finding of service connection for those disorders listed therein and found within the applicable time periods. The presumption, by statute, is rebuttable. Presumptive service connection is not in order where there is affirmative evidence to the contrary. 38 U.S.C.A. § 1113(a) (West 1991). Presumptive service connection is also not in order where the evidence establishes that an intercurrent injury or disease that is a recognized cause of the presumptive disease was suffered between the date of separation from service and the onset of the presumptive disease. Id. Evidence which may be considered in rebuttal of service incurrence is any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury of disease. 38 C.F.R. § 3.307(d) (1999). The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. Id. (emphasis added). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 38 C.F.R. § 3.102 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. In this case, the appellant has a diagnosis of degenerative joint disease, i.e., arthritis, of the spine, in addition to other diagnoses not here in issue. With respect to establishing entitlement to service connection on a presumptive basis as a former POW, the question is whether his arthritis of the spine is post-traumatic or degenerative. There is of record a medical opinion that the veteran's osteoarthritis "could be" related to trauma experienced as a POW. There is also of record a medical opinion that the veteran's spinal stenosis and other spinal diagnoses are attributable to degenerative changes, rather than post- traumatic in nature. The basis for the first opinion was unstated, and it was speculative. A statement that a condition "could be" related to trauma does not amount to a diagnosis of post-traumatic arthritis. Even if it did, however, the second opinion was buttressed by review of the claims folder, examination of the veteran, and a medical opinion as to the severity of the condition experienced by this veteran. The second opinion stated that it is more likely than not that the veteran's diagnoses are related to degenerative joint disease, rather than post-traumatic. The Board finds that the preponderance of the evidence is therefore against a finding that the veteran's spinal arthritis is post-traumatic, and that presumptive service connection for post-traumatic arthritis in a former POW is not warranted. Furthermore, there is no competent evidence of diagnosis of or manifestation of arthritis of the cervical or lumbar spine to a compensable degree within a year of service. The appellant contends that Dr. Ward diagnosed him to have arthritis in 1947, but that Dr. Ward is deceased and his records unavailable. What evidence there is from Dr. Ward consists of a 1976 statement showing that x-rays in September 1973 showed degenerative arthritis. The veteran's last period of service ended in 1951. A diagnosis of degenerative arthritis more than 20 years after service, is too remote to warrant service connection under the general presumptive regulations. 38 C.F.R. § 3.309(a) (1999). The preponderance of the evidence is also against establishing service connection for arthritis of the cervical and lumbar spine on a direct basis. The only evidence in support of such a claim, other than the assertions of the veteran, is that of a VA doctor who opined that degenerative joint disease, spinal stenosis, and osteoarthritis could be possibly related to physical trauma and malnutrition suffered in service. This opinion is outweighed by the medical opinion of the VA examiner who reviewed the claims file and medical history as well as examined the veteran and who determined that it was more likely than not that the veteran's arthritis was degenerative in nature and not the result of trauma or malnutrition. It is also outweighed by the medical evidence showing no treatment for or diagnosis of arthritis as a residual of claimed malnutrition. There is no reasonable doubt to be applied in the veteran's favor on this issue, as the preponderance of the evidence is against his claim. B. PTSD The appellant's increased rating claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the appellant's contentions regarding the increased severity of his service-connected disability. See Jones v. Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the RO provided VA examinations to the appellant. There is sufficient evidence of record to properly evaluate the appellant's service-connected PTSD. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (1999). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). An evaluation of the level of disability includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The RO determined that the appellant's claim for an increased disability evaluation for PTSD was received on April 28, 1994, and that was the effective date for the award of a 50 percent disability rating. As indicated above, he was assigned a 100 percent disability rating effective January 12, 1998. The Board will address whether he was entitled to a disability rating in excess of 50 percent prior to January 12, 1998, the effective date of the 100 percent evaluation. The appellant's service-connected PTSD is evaluated under Diagnostic Code 9411. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1996), including the rating criteria for evaluating mental disorders. See 61 Fed. Reg. 52695-52702 (October 8, 1996). This amendment was effective November 7, 1996. In addition to modified rating criteria, the amendment provided that the diagnoses and classification of mental disorders be in accordance with DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See 38 C.F.R. §§ 4.125 through 4.130 (1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Therefore, the Board must evaluate the appellant's claim for an increased rating from November 7, 1996 to January 12, 1998, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. For any date prior to November 7, 1996, the Board cannot apply the revised regulations. The RO considered the old regulations in its January 1995 rating decision and provided the rating criteria to the appellant in the February 1996 Statement of the Case. The RO considered the new regulations in the November 1997 SSOC and provided the rating criteria. Therefore, the appellant and his representative were given notice of the old and new regulations and have had an opportunity to submit evidence and argument related to both regulations. See Bernard v. Brown, 4 Vet. App. 384 (1993). Prior to November 1996, the schedular criteria for 50, 70, and 100 percent ratings for psychoneurotic disorders were as follows: Ability to establish and 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. [50 percent]. 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. [70 percent]. 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 maintain or retain employment. [100 percent]. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). VA General Counsel issued a precedent opinion concluding that the term considerable, the criterion for a 50 percent evaluation, was to be construed as "rather large in extent or degree." VAOPGCPREC 9-93. The Board is bound by this interpretation of the term "considerable." 38 U.S.C.A. § 7104(c) (West 1991 & Supp. 1999). Each of the three criteria for a 100 percent disability rating was an independent basis for grant a 100 percent rating. Johnson v. Brown, 7 Vet. App. 95 (1994). The amended regulations in 38 C.F.R. § 4.130 established a general rating formula for mental disorders. The amended formula assigns disability evaluations according to the manifestation of particular symptoms. The amended formula replaced the general rating schedules for psychotic disorders, organic mental disorders, and psychoneurotic disorders where disability evaluations were assigned based on classification of the claimant's social and industrial impairment, due to the mental disorder, as total, severe, considerable, definite, or mild. The amended formula provides more objective criteria for assigning a disability evaluation. Although not intended to liberalize rating criteria, the amended formula for rating mental disorders may be more beneficial to a claimant if the medical evidence associated with the claims file indicates symptoms which qualified the claimant for a higher disability evaluation than that assigned by the RO under the prior regulation. See VAOPGCPREC 11-97. Under the rating criteria for psychiatric disorders in effect since November 7, 1996, 50, 70 and 100 percent ratings are warranted in the following circumstances: 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 and maintaining effective work and social relationships. [50 percent]. 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. [70 percent]. 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. [100 percent]. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). When evaluating a 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 must be considered. 38 C.F.R. § 4.126(a) (1999). In addition, the evaluation must 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (1999). The diagnoses and classification of mental disorders must be in accordance with DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See 38 C.F.R. §§ 4.125 through 4.130 (1999). The evidence between April 28, 1994 (the effective date of the 50 percent evaluation for PTSD) and November 7, 1996 (the effective date of the new rating criteria for evaluating mental disorders) consists of the June 1995 VA examination and the June 1995 hearing testimony of the appellant, his spouse, and his daughter. This evidence did not, however, demonstrate considerable social and industrial impairment. Neither the objective medical evidence nor the testimony by the witnesses regarding the appellant's symptomatology approximated the criteria for a 70 percent or higher disability rating. There was no evidence of severe impairment in the appellant's ability to establish and maintain effective relationships with people due to his PTSD symptoms. He was able to maintain a long-term (almost fifty-year) relationship with his spouse despite his psychiatric symptoms, and he spoke of their relationship and his relationship with other family members in generally favorable terms. Further, the appellant was able to maintain limited friendships with other veterans. The appellant's daughter testified that the appellant was able to eat breakfast at restaurants, despite his complaints of difficulties with crowds. The June 1995 VA examination showed that, although the appellant was tense and restless, his mood and thought processes were normal, he was not delusional, and he did not hallucinate. The assigned 50 percent disability rating reflects the fact that he was irritable and had difficulty making close friends. The evidence from November 7, 1996 (the effective date of the new rating criteria for evaluating mental disorders) until January 12, 1998 (the effective date of the 100 percent disability rating) consists of testimony of the appellant and his spouse at the April 1997 hearing, VA treatment records showing psychological testing in May 1997, and the VA examination report from July 1997. This evidence also did not demonstrate that the criteria for a 70 percent or higher disability rating had been met. Under the old rating criteria, there remained no evidence of severe social and industrial impairment. The appellant continued to maintain his long-term relationship with his spouse. The appellant was able to participate in small family events. The appellant was able to dine out with his spouse under limited circumstances. Although the appellant's mood was very depressed, his thought processes were normal and there were no delusions or hallucinatory elements. Although the appellant's symptoms were described in May 1997 as "very significant." This language denotes a large amount of impairment and, therefore, resembles more closely "considerable" impairment than "severe" impairment. Under the new criteria, there was evidence that the appellant was very depressed and had some impairment in impulse control, as evidenced by his unprovoked irritability. However, there was no evidence that he met the other criteria for a 70 percent disability rating under the new regulations. He never exhibited suicidal ideation; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; periods of violence; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. His symptoms did fit the criteria for the 50 percent disability rating such as symptoms of disturbances of mood and motivation and difficulty in establishing and maintaining effective relationships. The Board concludes that the overall disability picture did not more nearly approximate the 70 percent criteria such as to warrant an increased rating, and it did not even approach the symptomatology required for a 100 percent evaluation. 38 C.F.R. § 4.7 (1999). The evidence did not show that the criteria for a disability rating in excess of 50 percent were met prior to January 12, 1998. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the veteran's disability in his favor. However, for the reasons discussed above, the objective medical evidence did not create a reasonable doubt regarding the level of his disability from PTSD. Neither criteria for rating mental disorders was more beneficial to the appellant, and the preponderance of the evidence is against assignment of a disability rating in excess of 50 percent prior to January 12, 1998, for PTSD under Diagnostic Code 9411 regardless of which criteria are used. ORDER Entitlement to service connection for arthritis of the cervical and lumbar spine, claimed as post-traumatic arthritis, is denied. Entitlement to a disability evaluation in excess of 50 percent for PTSD from April 28, 1994, to January 12, 1998, is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals