BVA9500341 DOCKET NO. 91-10 520 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease of the left knee, currently rated as 30 percent disabling. 2. Entitlement to an increased evaluation for lumbosacral strain with degenerative disc disease at L4-5, L5-S1, currently rated as 20 percent disabling. 3. Entitlement to an increased evaluation for post-traumatic stress disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from February 1954 to August 1973. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The case was remanded by the Board in September 1991 and January 1993. A December 1993 rating decision granted service connection for lumbar disc disease and assigned a 20 percent rating for lumbosacral strain with degenerative disc disease, L4-5, L5-S1. CONTENTIONS OF APPELLANT ON APPEAL Essentially, it is contended by and on behalf of the veteran that his left knee disability warrants replacement and, therefore, a greater disability rating should be established. Additionally, it is argued that the severity of his back disorder is such that more than the currently assigned 20 percent disability is warranted, and it is reported that his post-traumatic stress disorder (PTSD) has worsened and that his medication has been doubled within the past year. It is requested that a higher rating for the left knee disability be considered on an extraschedular basis. 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 against increased ratings for degenerative joint disease of the left knee and for lumbosacral strain with degenerative disc disease at L4-5, L5- S1; and that the preponderance of the evidence supports a 30 percent rating for PTSD. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claims has been developed. 2. The left knee disability does not result in more than moderate impairment of the knee with recurrent subluxation and lateral instability. 3. The lumbosacral spine disorder with degenerative joint disease results in limitation of motion which is not more than moderate; and no more than moderate intervertebral disc syndrome. 4. The veteran's PTSD results in definite social and industrial impairment.. 5. The case does not present an exceptional or unusual disability picture as renders impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.20 and Part 4, Diagnostic Codes 5010, 5260, 5261, 5256, 5257 (1993). 2. The criteria for an evaluation in excess of 20 percent for lumbosacral strain with degenerative disc disease at L4-5, L5-S1, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.20 and Part 4, Diagnostic Codes 5292, 5293, 5295 (1993). 3. The criteria for an evaluation in excess of 30 percent for PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.129, 1.130 and Part 4, Diagnostic Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim which is plausible. Further, we are satisfied that all relevant facts have been properly developed. There is no indication that there are additional records which have not been obtained which would be pertinent to the veteran's claim. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Entitlement to Increased Evaluations Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1993). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1993). Increased Evaluations-Degenerative Arthritis Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5003. An Increased Evaluation for Degenerative Joint Disease of the Left Knee A brief history of the events leading up to the appeal of this issue is as follows: Service connection was established for instability of the left knee with probable tears in the lateral and anterior cruciate ligaments in June 1981. It was determined that this disorder was the result of an inservice injury. A noncompensable rating was assigned, effective from January 30, 1981. Later that year, the RO determined that the above rating action involved clear and unmistakable error as a VA examination showed marked medial-lateral instability. Thus, a 30 percent rating, was assigned from the January 1981 date noted above. The 30 percent rating was based on examination findings which included marked medial-lateral instability of the knee. The 30 percent rating has been confirmed and continued on numerous occasions since 1981, most recently in December 1993. The left knee disorder is now classified as degenerative joint disease of the left knee. The 30 percent rating in effect contemplates flexion of the leg that is limited to 15 degrees, or extension of the leg that is limited to 20 degrees. Additionally, this rating contemplates favorable ankylosis of the knee (one that is fixed in full extension, or in slight flexion at an angle between 0 degrees and 10 degrees). A 30 percent rating also contemplates severe impairment of the knee, with recurrent subluxation or lateral instability. For an increased evaluation, the veteran would have to show limitation of extension of the left leg to 30 degrees (Diagnostic Code 5261) or flexion fixed at an angle between 10 degrees and 20 degrees (Diagnostic Code 5256). He already receives the maximum evaluation under Diagnostic Code 5260 regarding limitation of flexion of the leg and under 5257 regarding impairment of the knee. At a personal hearing in December 1990, the veteran testified that his knee had worsened, and he said that his knee locked up on him when driving. Prolonged standing gave him problems. He wore a brace most all of the time. VA outpatient treatment records from the early 1990's show complaints of increased pain, effusion and locking. In November 1990, it was noted that he might ultimately need a total knee replacement "down the road". VA treatment records from February and March 1993 also show findings including medial joint line tenderness, medial pseudo- laxity and crepitus. At a VA orthopedic examination conducted in February 1993 regarding the veteran's back complaints, it was noted that the veteran's tandem gait and toe and heel walking were normal. In March 1993, he was fitted with a knee brace. An adequate fit was noted, but the examiner indicated that the veteran might have problems due to increased varus. At a VA examination in November 1993, the left knee exhibited left knee laxity in the medial and collateral ligaments. McMurray's test was positive and drawer signs were negative. There was no swelling. Clearly, the veteran does not meet the criteria mentioned above for an increased rating regarding his left knee degenerative joint disease. Objective findings show significant knee disability to include laxity in the medial and collateral ligaments, but neither ankylosis nor limitation of motion of the knee which would warrant a rating in excess of 30 percent is shown. With respect to an extraschedular rating, the record does not show frequent periods of hospitalization or, in the Board's opinion, marked interference with employment as would render impractical the application of the regular schedular standards. The most recent evidence shows that the veteran was working, but at an easier, that is, supervisory job. Findings with respect to the knee have principally involved instability, but we note that severe instability is contemplated by the 30 percent rating under Diagnostic Code 5257. Also, some instability may be ameliorated by the brace recently prescribed. An Increased Evaluation for Lumbosacral Strain with Degenerative Disc Disease at L4-5, L5-S1 A brief history of the events leading up to the appeal of this issue is as follows: Service connection was established for chronic lumbosacral strain upon rating determination in May 1989. A 10 percent evaluation, effective from November 2, 1988, was established. This award was based on the fact that recurrent lumbosacral strain was shown in the service medical records. This rating was confirmed and continued in subsequent years until rating decision in January 1993. At that time, service connection was established for degenerative disc disease of L4-5 and L5-S1 as part and parcel of the already service-connected lumbosacral strain. The record shows that the veteran was informed that his lumbosacral strain and degenerative disc disease of the lumbar spine would be rated together as they involved the same anatomical area. See 38 C.F.R. 4.14 (1993). Clinical findings upon VA examination at that time resulted in an increased evaluation of 20 percent, effective from November 2, 1988. The 20 percent rating in effect contemplates lumbosacral strain and degenerative disc disease resulting in moderate limitation of motion of the lumbar spine, moderate intervertebral disc syndrome with recurring attacks and lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. For an increased evaluation, severe limitation of motion of the lumbar spine, severe intervertebral disc syndrome with intermittent relief or severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space must be shown. An increased rating would also be warranted if only some of these manifestations were present if there was also abnormal mobility on forced motion. The medical record includes a report of examination in late 1988 in which findings were of forward flexion to 75 degrees, lateral flexion to 20 degrees bilaterally, no sensory loss and no pathologic reflexes. He subsequently reported back pain. At the December 1990 personal hearing, the veteran testified that he experienced pain in the back with some burning sensation in his hip. He also experienced numbness across the bridge of his foot which he associated with his back problems. Upon orthopedic examination conducted for VA purposes on February 4, 1993, the veteran reported constant low back pain. Range of motion of the spine showed flexion to 70 degrees, extension to 5 degrees and abduction to 10 degrees bilaterally. (Normal range of motion as provided by the Physician's Guide for Disability Evaluation Examinations (Physician's) is to 95 degrees on forward flexion, to 35 degrees on extension backward, to 40 degrees on lateral flexion and to 35 degrees on rotation. Straight leg raising is to 90 degrees.) There was tenderness from L4-S2 in the midline and also to the right of midline. He was areflexic in the lower extremities. X-rays of the spine were interpreted as showing marked degenerative disc disease with disc space narrowing at L4-5, S1. Significant posterior spurring was noted at L4-5. Upon VA examination on February 5, 1993, the veteran complained of intermittent low back pain and numbness in the right great toe. He felt that he could lift up to 100 pounds. There was no radiation to the legs and no change in bowel or bladder control. There was tenderness over the lumbosacral midline area. There was mild notch tenderness without nerve or trochanter tenderness. Heel-toe walking was normal, and strength of the lower extremities was 5/5. He had normal standing or walking posture. Sensory and motor examinations were normal. Deep tendon reflexes were 1 plus. The diagnosis was that the history did not suggest significant nerve root problem. The lumbar spine could flex to 60 degrees. Extension, rotation and side tilt were to 25/10. At a VA examination in November 1993, there was negative straight leg raising bilaterally. Flexion of the lumbar spine was to 90 degrees, extension was to 20 degrees and lateral flexion was to 35 degrees. The diagnosis was degenerative disc disease with disc space narrowing. It is our conclusion that the lumbosacral spine disability is best represented by the 20 percent rating currently in effect. The veteran does not exhibit severe limitation of motion or severe intervertebral disc syndrome. With respect to the intervertebral disc syndrome, he describes back pain, numbness in the foot and, on occasion, absence of reflexes in the lower extremities has been noted. However, he does not exhibit any other finding consistent with radiculopathy such as spasm, loss of bowel or bladder control, sensory impairment, muscle weakness or muscle atrophy. Additionally, he does not show any of the other clinical manifestations under the appropriate diagnostic codes to warrant a rating in excess of 20 percent such as listing of the spine, marked limitation of forward bending or abnormal mobility. An Increased Evaluation for PTSD A brief history of the events leading up to this appeal as to this issue may be summarized. Service connection was established for PTSD upon rating determination in June 1989. A 10 percent rating was assigned, effective from November 2, 1988. The veteran appealed this decision, but it was confirmed and continued on rating actions in June 1990, March 1992 and January 1993. The appeal continues. The severity of the veteran's service-connected psychiatric disorder is assessed by VA for compensation purposes by application of the criteria set forth in Diagnostic Code 9411 of the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The veteran is currently in receipt of a 10 percent rating which is warranted when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation requires "definite" impairment in the ability to maintain effective and wholesome relationships with people and when psychoneurotic symptoms result in such reductions in initiative, flexibility, efficiency and reliability levels as to produce "definite" industrial impairment. A 50 percent evaluation requires that the ability to establish 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. In Hood v. Brown, 4 Vet.App. 301 (1993), the Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of 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." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). With these considerations in mind, the Board will address the merits of the claims at issue. A psychiatric report in mid 1989 reflected that the veteran was being seen for depression. It was considered that PTSD was in partial remission. A VA consultation report also in mid 1989 noted the presence of personality disorder in addition to psychoneurosis. Findings included tension, irritability and anxiety. At the 1990 personal hearing, the veteran reported that he experienced sleep disturbance in that he only slept three to four hours at a time. His wife said that he was irritable and angry. He was on medication which helped control these symptoms. She added that he was depressed most of the time. He attended counseling once a month. VA records from 1990 and 1991 show that he was undergoing therapy for PTSD. He described trouble sleeping and difficulty keeping his temper. In mid 1991, it was noted that he continued to struggle with symptoms including isolation, anger, sleep disturbance and depression. In early 1992, he said that he felt a lot better than he once did. His mood was fairly good. In mid 1992, his medication dosage was increased. In early 1993 he was "feeling better" and was "managing his feelings better." He felt that therapy had helped him, and he liked a new job assignment at work. Upon VA psychiatric examination in February 1993, the veteran reported "nightsweats," and said that he woke up several times during the night. He indicated that he had worked since 1977 for [redacted] County Road Department. He described incidents where he had problems getting along with work associates. He mentioned difficulty with loud noises. He avoided people in general, and he tended to avoid thoughts of Vietnam. On examination, the veteran's long term memory was adequate. His calculation and attention were adequate. His mood and affect were somewhat sullen, depressed and tense. He was suspicious of others. He said that he had no close friends and socialized with no one other than his wife. He reported irritability and a voracious appetite. A typical day involved work on his farm. His hobbies included computers, guns and watching television. Psychological tests were indicative of severe depression. He reported some suicidal thoughts. The examiner's diagnoses included PTSD, but he noted that the veteran also had a mixed personality disorder with asocial passive aggressive and explosive features. He added that the personality disorder was not attributable to PTSD. It is the Board's opinion that current manifestations of the veteran's PTSD produce "definite" social and industrial impairment. The record shows that the veteran's current difficulties have largely involved the control of explosive anger. According to psychiatric opinion, these manifestations, as well as his social isolation, are the result of personality disorder, not psychoneurosis, and, as such, may not be considered in rating the psychoneurosis. See 38 C.F.R. § 4. 14. If we consider the remaining psychiatric signs and symptoms as manifestations of PTSD, we note that these include suspiciousness, anxiety, depression, irritability and some suicidal thoughts. However, despite these symptoms, the veteran's memory, attention, and calculating ability are not impaired, he relates in an appropriate and cooperative manner, he is working on a full time basis and he reports that his mood and functioning have improved with treatment. It is also significant that, even considering the personality disorder along with PTSD, the recent psychiatric assessment was of only moderate industrial impairment, that is, less than "definite," according to the definition set forth earlier, and the social impairment is moderately severe, that is, greater than definite. According to 38 C.F.R. § 4.130, an examiner's classification is not determinative of the degree of disability. However, after analyzing the symptomatology due to PTSD, and the examiner's classification, we consider that the psychoneurotic symptoms have resulted in impairment in reliability, flexibility and efficiency levels as to cause definite, but not more than definite, industrial impairment; and result in definite, but not more than definite, social impairment. Accordingly, a 30 percent rating for PTSD is in order. Increased Ratings The evidence above does not suggest that the veteran's service- connected left knee, low back and his PTSD present such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. 3.321(b)(1), as he has not been frequently hospitalized for treatment of his condition, and the schedular criteria re adequate to rate this disability. Additionally, functional loss due to pain is not demonstrated (38 C.F.R. § 4.40), and we do not find that there is a question as to which of two evaluations shall be applied. 38 C.F.R. § 4.7 (1993). ORDER An increased evaluation for degenerative joint disease of the left knee is denied. An increased evaluation for lumbosacral strain with degenerative disc disease at L4-L5, L5-S1 is denied. An increased evaluation for PTSD is granted, to the extent indicated, subject to the criteria applicable to the payment of monetary benefits. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS 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.