BVA9507735 DOCKET NO. 93-13 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for residuals of a compression fracture of L5, with aggravation of osteoarthritic involvement, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from March 1964 to August 1973. This appeal arises from a November 1990 and a subsequent rating decision in January 1992 of the St. Petersburg, Florida, regional office (RO). In November 1990, the RO granted the veteran service-connection for non-Hodgkin's lymphoma with an assigned noncompensable rating. The veteran submitted a statement in February 1991 expressing disagreement with the rating assigned by the RO. A statement of the case on the issue of increased rating for non- Hodgkin's lymphoma was sent to the veteran in March 1991. Later in March 1991, the veteran submitted a VA Form 1-9 indicating that his disagreement was that he had not been granted benefits under paragraphs 29 and 30 based on a hospitalization in December 1980 for non-Hodgkin's lymphoma. He also raised an issue involving his back disorder. In a January 1992 rating decision, the RO denied the veteran's claim for an evaluation above 30 percent for post-traumatic stress disorder, and denied the claim for an evaluation above 20 percent for residuals of a compression fracture of L5, with aggravation of osteoarthritic involvement. At a hearing held at the RO in June 1992, the issues on appeal were indicated to be those listed on the front page of this decision. However, it appears that no action has been taken with respect to the claim pertaining to benefits under paragraphs 29 and 30 that was raised by the veteran. Attention of the RO is called for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a higher evaluation for his service-connected post-traumatic stress disorder. He contends that he experiences nightmares, insomnia, flashbacks, anxiety and depression. He also contends that his social and industrial capacity is affected by his inability to relate to other people and his problems with authority figures. He also contends that he is entitled to a higher evaluation for his service-connected back disorder. He contends that he suffers from back pain and that as a result of the pain, he has lost time from work as a postal carrier, and is restricted in his lifting and bending. His representative requests that all reasonable doubt be resolved in the veteran's favor. 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 the claim for an evaluation in excess of 30 percent for post-traumatic stress disorder, and that the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent for residuals of a compression fracture of L5, with aggravation of osteoarthritic involvement. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claims. 2. The veteran's service-connected post-traumatic stress disorder is currently manifested by mild depression, nightmares, flashbacks, insomnia, survivor guilt, and difficulty in relating to people. These symptoms produce no more than definite social and industrial impairment. 3. The veteran's service-connected back disability is manifested by no more than moderate limitation of lumbar spine motion and osteoarthritic changes, but not by muscle spasm, listing of whole spine to opposite side, positive Goldthwait's sign, abnormal mobility on forced motion, or neurological involvement. 4. The veteran's service-connected disabilities do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for post-traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 9411 (1994). 2. The criteria for an evaluation in excess of 20 percent for residuals of a compression fracture of L5, with aggravation of osteoarthritic involvement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 5292, 5293, 5295 (1994). 3. Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Post-Traumatic Stress Disorder Service connection was granted for post-traumatic stress disorder in October 1988. A 30 percent evaluation was assigned from June 1988. Subsequent rating actions have continued this evaluation. The veteran contends that he is entitled to a higher evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The veteran's post-traumatic stress disorder is evaluated under Diagnostic Code 9411. The current 30 percent rating contemplates definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and such reduction of initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. The next higher rating, 50 percent, requires evidence that the ability to establish or maintain effective or favorable relationships with people is considerably impaired, and the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. Part 4, Code 9411 (1994). 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 the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." 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). The record contains a March 1991 letter from Naomi Kitner, M.S., a private therapist who has treated the veteran. Ms. Kitner's letter stated that the veteran was suffering from post-traumatic stress disorder as a result of emotional and physical crises he experienced in Vietnam. She further stated that she had been treating the veteran since February 1991 and was seeing him weekly to deal with the trauma of his Vietnam experiences including his contracting non-Hodgkin's lymphoma as a result of exposure to cancer-causing agents in Vietnam. She stated that the veteran had suffered severe physical and emotional pain. An October 1991 statement from Ms. Kitner is also in the record. She stated that the veteran continued to be seen on a weekly basis in order to work through severe anxiety and depression related to emotional and physical crises he experienced during his Vietnam service. She noted that the veteran continued to experience intense psychological distress associated with post- traumatic stress disorder. His symptoms included blackouts, depression, and severe anxiety reactions to cues associated with his Vietnam experience, including helicopters, listening to "Taps," aircraft noises, war machinery or ammunition, and war news, with visual and auditory hallucinations associated with the war. The veteran also displayed a great deal of anger associated with authority figures perceived to be unfair and/or abusive. He also apparently had attempted physical attacks on his managers at the Post Office, but had not lost control of his impulses. The veteran also suffered from low self-esteem, severe social anxiety and fear of close or intimate relationships with others as the result of his identification with a "murderer" role in Vietnam. The veteran was depressed and felt out of control of the erratic and unpredictable onset of flashbacks which caused social embarrassment and job impairment. A VA examination was conducted in November 1991. The veteran reported that his nightmares and flashbacks had been getting worse in the past year. He also reported insomnia and that he was uncomfortable in his own house. He could not watch or talk about the Desert Storm conflict. He stated that he had not been depressed but that he had occasional suicidal ideation. He reported a good appetite, with a 40 pound weight gain in the past 7 months. He stated that it was hard for him to show emotions, and that he had guilt about what he did in Vietnam. He reported some self-referential ideation and auditory and visual hallucinations. On examination, the veteran's affect was appropriate, and his mood was mildly depressed. There was no speech disturbance and he was alert and oriented. His memory was within normal limits. Thoughts were concrete and logical with some insight into his problems. He had some self-referential ideation, but no suicidal or homicidal ideations and no auditory or visual hallucinations. The impression was post-traumatic stress disorder. The examiner stated that there was a moderate impairment in the veteran's level of psychological, social and vocational adaptability. The veteran testified at a personal hearing at the RO in June 1992. He stated that he worked full-time for the United States Postal Service as a letter carrier and had lost seven or eight days of work in the past year due to his post-traumatic stress disorder. He stated that he had passed-up opportunities to advance into management because he feared decision-making responsibilities. He also reported that he is easily angered and must control his temper when dealing with supervisors and postal customers. The veteran testified that he had a number of friends with whom he socialized as well as six or seven fellow Vietnam veterans at the post office who looked out for one another. In reviewing the recent medical evidence, it is apparent that the veteran's post-traumatic stress disorder causes a degree of social and industrial impairment which is consistent with the "more than moderate but less than rather large" degree contemplated by the current 30 percent evaluation. 38 C.F.R. Part 4, Code 9411 (1994). Importantly, the veteran is able to hold a full-time job and to maintain friendships. He is able to control his anger to keep from jeopardizing his employment. The disability picture drawn by the medical reports in this case reveals an impairment which is moderately large in degree and definitely less than rather large or "considerable" as the term is used in the rating schedule. 38 C.F.R. Part 4, Code 9411 (1994). The disability is not more than definite. It does not approximate the considerable impairment required for the next higher rating. 38 C.F.R. § 4.7 (1994). The evidence for and against the claim is not in relative equipoise, therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)(West 1991); 38 C.F.R. § 3.102 (1994). II. Residuals of Compression Fracture of L5, With Aggravation of Osteoarthritic Involvement The service medical records show that the veteran complained of back pains following a helicopter crash in Vietnam. A compression fracture of L5 was noted on examination in April 1972. The service separation examination in July 1973 noted occasional complaints of mild back pain and a permanent profile for the veteran's back condition was issued. Service connection for residuals of compression fracture of L5, with aggravation of osteoarthritic involvement was granted in December 1987. A 20 percent evaluation was assigned from October 1987. Subsequent rating actions have continued this evaluation. The veteran contends that he is entitled to a higher evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's back disorder is currently evaluated under Diagnostic Codes 5003 and 5292. The current 20 percent rating contemplates a moderate degree of limitation of lumbar spine motion. The next higher rating, 40 percent, requires a severe degree of limitation of lumbar spine motion. 38 C.F.R. Part 4, Code 5292 (1994). A VA examination was conducted in November 1991. The veteran reported the history of the helicopter crash in service, and stated that he had experienced worsening low back pain over the past year. The pain was present approximately nine days out of each month, was worse in cold or damp weather, and was sometimes precipitated by awkward movement of his torso. He reported no radiation of the pain and no paresthesia in the lower extremities. He stated that he had lost approximately 16 days of work in the past year due to his back problem. On examination, the veteran walked with a slow gait and no limp. He undressed and dressed readily without discomfort but a little guardedly. The normal spinal curve was maintained, there was no spinous tenderness or paravertebral spasm. There was no pelvic tilt. Lumbar flexion was limited to 60 degrees and extension to 20 degrees. Lateral flexion was limited to 30 degrees on the right and 40 degrees on the left. Lateral rotation was limited to 30 degrees on the right and to 45 degrees on the left. The veteran was able to toe and heel walk equally. Straight leg raising was positive at 60 degrees on the right and negative at 60 degrees on the left. Lasegue's sign was negative. There were no neurological deficits present in the lower extremities. X- rays showed an increase in the narrowing of the intervertebral disc between L4-5 since a January 1990 study. No other interval change was noted. The impression was osteoarthritis of lumbar spine with strong psychological overlay. The record also contains a statement dated in July 1992 from Marc R. Peck, M.D. Dr. Peck reported that the veteran had shown increasing back pain and decreasing range of motion form increasing degenerative joint disease in the lumbar spine. He also stated that this was a progressive and slowly deteriorating disease. The VA Physician's Guide for Disability Evaluation Examinations, Section VII, par. 2.23 describes normal ranges of motion of the lumbar spine as follows: Flexion forward 95 degrees, extension backward 35 degrees, lateral flexion 40 degrees and rotation 35 degrees. The ranges of motion of the lumbar spine shown on the most recent VA examination conducted in November 1991, disclosed that the veteran's ranges of lumbar spine motion are within the moderate range contemplated by the current 20 percent evaluation. The severe limitation of motion required for a 40 percent evaluation has not been demonstrated. 38 C.F.R. Part 4, Code 5292 (1994). Dr. Peck's statement that the veteran's condition is progressive and that it will result in slow deterioration of his condition does not provide a basis for an increased rating at this time. If such deterioration and progression occurs in the future, the veteran is invited to contact the RO with a request for a higher evaluation at that time. The Board has also considered the possibility of assigning a higher rating to the veteran's disability under other codes pertaining to the low back. However, he is not entitled to a higher evaluation under codes 5293 or 5295 since the medical evidence does not demonstrate a severe disability with muscle spasm, neurological involvement, listing of the whole spine to the opposite side, positive Goldthwait's sign, or abnormal mobility on forced motion. 38 C.F.R. Part 4, Codes 5293, 5295 (1994). There is no evidence of severe recurring attacks with intermittent relief. The evidence for and against the claim is not in relative equipoise, therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)(West 1991); 38 C.F.R. § 3.102 (1994). EXTRASCHEDULAR CONSIDERATION The schedular evaluations are adequate to compensate the veteran's disabilities. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). Consequently, the extraschedular criteria is not for application. Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1994). ORDER An evaluation in excess of 30 percent for post-traumatic stress disorder is denied. An evaluation in excess of 20 percent for residuals of a compression fracture of L5, with aggravation of osteoarthritic involvement, is denied. JOAQUIN AGUAYO-PERELES 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.