BVA9507178 DOCKET NO. 89-45 856 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a neck injury. 2. Entitlement to a disability evaluation greater than 30 percent for post-traumatic stress disorder. 3. Entitlement to a disability evaluation greater than 20 percent for lumbosacral strain. 4. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities. 5. Entitlement to an effective date prior to July 21, 1988, for the assignment of a 30 percent disability evaluation for the veteran's service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: William D. Mallard, Jr., attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served from February 1966 to January 1970. This appeal stems from a November 1988, August 1992, and May 1994 rating decisions of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). The Board of Veterans' Appeals (Board) remanded the case in February 1990 for evidentiary and procedural development. The requested development has been accomplished and the case is now ready for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he injured his neck in a parachute accident during service and that service connection is therefore warranted. He also maintains that his service-connected PTSD and lumbosacral strain are more disabling than recognized by the evaluations currently in effect. He also maintains that he is unable to work due to the severity of these disabilities. Finally, he maintains that an earlier effective date for the assignment of a 30 percent disability evaluation is warranted. 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 files. 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 veteran has not met the intial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for residuals of a neck injury is well grounded, and that the preponderance of the evidence is against granting an increased disability evaluation for the veteran's lumbosacral strain or an effective date prior to July 20, 1988, for the assignment of a 30 percent disability evaluation for the veteran's service-connected PTSD. Further, the evidence supports the assignment of a 50 percent evaluation for PTSD and a total disability evaluation based upon individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the veteran's appeal has been obtained. 2. A neck injury was not shown in service, and no current neck pathology is shown to be related to any incident of service. 3. The veteran's PTSD is manifested by considerable impairment of social and industrial adaptability. 4. The veteran's lumbosacral strain is primarily manifested by complaints of pain and stiffness, slight limitation of motion and mild spondylosis. 5. The veteran submitted a claim for an increased disability evaluation for his service-connected PTSD on July 21, 1988; treatment records for the year prior to this submission do not demonstrate increased disability sufficient to support an increased disability evaluation. 6. The veteran has reported a high school education and occupational experience with the Post Office. 7. His service-connected disabilities are PTSD and lumbosacral strain. The combined evaluation is 60 percent. 8. His service-connected disabilities preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for service connection for residuals of a neck injury. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The schedular criteria for a disability evaluation of 50 percent for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, Code 9411 (1994). 3. The schedular criteria for a disability evaluation greater than 20 percent for lumbosacral strain are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § Part 4, Code 5295 (1994). 4. The criteria for an effective date prior to July 21, 1988, for the assignment of a disability evaluation of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. § 3.400(o)(2) (1994). 5. A total disability rating based on unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, Part 4, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107, with the exception of the claim for service connection for residuals of a neck injury. The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. I. Service Connection The service medical records are negative for reference to a neck injury. Also, the November 1969 separation examination indicated that the veteran's neck was normal on clinical evaluation. The service medical records do reflect treatment for a low back complaints following a parachuting injury, but are silent for reference to any complaints of neck symptomatology. The first post-service reference to a neck injury is found in a November 1973 statement from I. B. Posner, M.D., who reported treating the veteran following a March 1973 automobile accident for complaints of anterior and posterior neck pain; the pertinent diagnosis was acute traumatic cervical myositis with acute cervical strain. Under the law, service connection is warranted for disabilities resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110. As noted above, a neck injury was not shown in service. Also, the evidence demonstrates that the first complaints of a neck injury were following a March 1973 automobile accident -- an accident that occurred more than three years after the veteran's separation from service. In October 1984 the veteran received treatment at a private medical facility for a neck injury sustained on the job as a construction worker. Furthermore, the veteran testified at the September 1991 hearing that he had injured his neck at his job with the Post Office. Regardless of whether the veteran's current neck pathology is due to an automobile accident, a construction injury or an accident at the Post Office, as a cervical spine injury or condition was not incurred in service, his claim is not well grounded and is therefore dismissed. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. II. Increased Disability Evaluations A review of the service medical records reveals that the veteran was seen on several occasions during service for low back pain following a parachuting injury. By rating decision in July 1978 service connection was established for lumbosacral strain and a disability evaluation of noncompensable was assigned. The evaluation was increased to 20 percent in an October 1984 rating action. By rating decision in March 1987 service connection was established for PTSD and a disability evaluation of 10 percent was assigned. The evaluation was raised to 30 percent, effective July 21, 1988, in a rating decision in November 1990 Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. A. PTSD The veteran's PTSD is currently evaluated as 30 percent disabling under the provisions of 38 C.F.R. § Part 4, Code 9411. This evaluation contemplates a definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms must result in such reduction in initiative, flexibility, efficiency and reliability levels so as to produce definite industrial impairment. In order to be entitled to an evaluation greater than 30 percent, the veteran must demonstrate that the ability to establish or maintain effective or favorable relationships with people is considerably impaired. Also, by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels must be so reduced so as to result in considerable industrial impairment. Applying these laws and regulations to the particular facts of this case, it is apparent that an increased rating is not warranted. 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 and 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. § 7104(c). With these considerations in mind, the Board will address the merits of the claim at issue. The veteran gave testimony in support of his claim at May 1989 and September 1991 hearings held at the RO. At the latter hearing, the veteran testified that he had a lot of nightmares relating to his service in Vietnam. He also testified that he had had to leave his job with the Post Office due to his inability to get along with his supervisor and some of the people he worked with. A VA psychiatric examination in September 1990 resulted in a diagnosis of PTSD. In August 1991, the veteran was examined by Benjamin C. Wills, M.D., a psychiatrist; the doagnoses included PTSD and dysthymic disorder. A May 1992 private psychiatric examination conducted by George W. Sciple, M.D., noted that the veteran was alert, accurate, well-directed and oriented times four. He denied illusions, hallucinations, depersonalizations, alienation or delusions. Intellectual testing revealed him to be of an average to above average level, as was his fund of information. His memory was intact and he could abstract. Also, his judgment was present and his tempo of thought was synchronous and not slowed. His associations were firm, although obsessive thinking was observed when he detailed his difficulties and how he believed that he had been mistreated by his employer. Emotional testing revealed no flattening, although the modulation of emotion was rather rigidly controlled resulting in a diminished smoothness of emotion. Moderately severe depression was present, but there was no evidence of suicidalism or homocidalism. He was quite angry; the anger was just below the surface and at times burst forth in a flood. The examiner noted that the veteran was quite body-oriented and that he converted his feelings into symptoms. It was reported that he was sleeping poorly and had nightmares of combat. Additionally, there was mild anxiety that increased when discussing his problems; there was some manipulativeness noted in this respect. There was no evidence of flaws in intellectual concentration or production. The Axis I diagnoses were PTSD and dysthymic disorder. The examiner commented that although the veteran did not go out socially, he did go grocery shopping and attend church on Sundays. Also, although he tended to lead an isolated existence, he did relate to family members. The veteran was examined by the VA in January 1994. At this examination, he complained of flashbacks, nightmares and depression. On mental status examination, although he was depressed, he was alert, cooperative, coherent and goal directed. Also, although he reported being suspicious of people, he was oriented times three and his memory times three was intact. Furthermore, his insight and judgment were fair and he was not suicidal. The pertinent diagnosis was chronic PTSD with depression. After reviewing all the evidence of record, the Board finds that the veteran's service-connected PTSD more appropriately warrants a 50 percent evaluation. At the time of the most recent VA psychiatric examination in January 1994, the veteran complained of nightmares and flashbacks of his Vietnam war experiences and added that he had crying spells and and a decreased appetite. The examiner noted that he he was depressed and suspicious. Similar findings were recorded during previous psychiatric evaluations. Given the chronicity and severity of the veteran's symptomatology, the Board concludes that PTSD is productive of considerable social and industrial impairment, and thus should be rated as 50 percent disabling. 38 C.F.R. §§ 4.7, Part 4, Code 9411. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. B. Lumbosacral Strain The veteran's lumbosacral strain is currently evaluated as 20 percent disabling under the provisions of 38 C.F.R. § Part 4, Code 5295. This evaluation contemplates muscle spasms on extreme forward bending and a loss of lateral spine motion. In order to be entitled to an evaluation greater than 20 percent, the veteran must demonstrate severe lumbosacral strain. Lumbosacral strain is deemed to be severe when it manifests with a listing of the whole spine to the opposite side, positive Goldthwaite's sign, a marked limitation of forward bending in the standing position, a loss of lateral motion with osteoarthritic changes or narrowing or irregularity of the joint spaces or some of the above with abnormal mobility on forced motion. A 40 percent evaluation may be assigned where there is severe limitation of the lumbar spine. 38 C.F.R. § Part 4, Code 5292 (1994). Applying these laws and regulations to the particular facts of this case, it is apparent that an increased rating is not warranted. At the May 1989 personal hearing, the veteran testified that he took Motrin and wore a TENS unit every day, although he was not wearing a TENS unit at the hearing because it was being repaired. He also testified that he is able to walk one city block without the onset of pain. The relevant diagnosis on VA examination in September 1990 was lumbosacral strain associated with an inservice parachute training injury. Private treatment records dated from October 1988 to September 1991 reflect approximately monthly treatment for low back pain. On several occasions, the veteran had mild paraspinal muscle spasms, most recently in September 1991. The veteran was examined by the VA in December 1991. At this examination the veteran complained of constant lower backache that was aggravated by standing. Physical examination of the lumbar spine showed no deformity, although there was mild vague tenderness over the lateral aspect of the spine. He demonstrated forward flexion of approximately 60 degrees, backward extension of approximately 30 degrees, lateral flexion of approximately 15 degrees, bilaterally, and rotation of approximately 30 degrees, bilaterally. There was no postural abnormality or fixed deformity and the musculature of the back was within normal limits; there was no objective evidence of pain on motion. The pertinent diagnosis was lower backache, probably myalgia. Frederick M. Laun, M.D., in a May 1992 statement reported that he had examined the veteran's back. He noted that he presented without any mechanical support such as braces, cane, crutches, etc. The veteran demonstrated range of motion of flexion to 75 degrees, extension to 25 degrees, right lateral flexion to 25 degrees and rotation to 25 degrees bilaterally; discomfort was noted over the left paravertebral muscle mass insertion. Also, the veteran complained of some pain going down the left leg with some hypesthesia to testing over the lateral and medial foot and in the lateral left calf compared to the right side; there was no palpable muscle tightness. The examiner commented that straight leg raising indicated that the veteran's back bothered him somewhat, but not as much as he indicated. X-rays showed no fracture or dislocation, good disc spaces and minimal, if any, decreased lordotic curvature. The veteran was examined by the VA in January 1994 and complained of increased pain and stiffness of the entire back with lifting more than 20 pounds and excessive bending or stooping. He further indicated that cold damp weather aggravated his pain. Objective findings noted that the veteran had an essentially normal gait and that all major extremities exhibited a full range of motion. On physical examination, there were no postural abnormalities or fixed deformity noted. Additionally, the muscles of the back had good tone and bulk. He demonstrated range of motion of the lumbosacral spine of forward flexion of approximately 90 degrees, backward extension of approximately 10 degrees, lateral flexion of approximately 35 degrees, bilaterally, and rotation of approximately 40 degrees, bilaterally. He evidenced increased pain with forward flexion and bilateral lateral flexion, but there was no evidence of neurological involvement or sensory loss. X-rays of the lumbosacral spine revealed mild osteopenia and mild spondylosis. The pertinent diagnosis was chronic low back pain secondary to lumbosacral strain and spondylosis per history of the patient with positive clinical and radiographic findings on exam. The evidence of record fails to demonstrate severe lumbosacral strain. A listing of the whole spine to the opposite side, a marked limitation of forward flexion or a loss of lateral flexion with osteoarthritic changes has not been demonstrated. The veteran has consistently demonstrated lateral flexion of 15 to 35 degrees and forward flexion of 60 to 90 degrees of a possible 95 degrees. Accordingly, although the Board notes the veteran's complaints, an increased disability evaluation is not available under the Schedule. 38 C.F.R. § Part 4, Codes 5292, 5295. The evidence is not so evenly balanced as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran . 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). The nature of the original back injury has been reviewed and the functional impairment that can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40 (1994). Furthermore, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the veteran's lumbosacral strain has caused marked interference with employability or necessitated frequent periods of hospitalization beyond that contemplated by the evaluations currently in effect. 38 C.F.R. § 3.321(b)(1) (1994). The criteria for an evaluation greater than that assigned have not been met or approximated as explained above. 38 C.F.R. § 4.7 (1994). III. Earlier Effective Date The veteran maintains that an effective date prior to July 21, 1988, is warranted for the assignment of a 30 percent disability evaluation for his PTSD. Under the statute, the effective date for an award of disability compensation shall be the earliest date as of which it is ascertainable that an increase in disability has occurred if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). Otherwise, the effective date shall not be earlier than the date of receipt of application thereof. 38 U.S.C.A. § 5110(a). A review of the record reflects that service connection was established for PTSD by rating decision on March 9, 1987; a disability evaluation of 10 percent was assigned. The veteran was informed of this decision on March 31, 1987, but he did not file a timely appeal. He did submit a statement to the VA on March 3, 1988, but this statement related to a claim for an increased disability evaluation for his service-connected back disability. He submitted a claim for an increased disability evaluation for his service-connected PTSD on July 21, 1988. Although VA clinical treatment records from 1988 note treatment for vague symptoms of PTSD, there was no evidence of symptoms sufficient to support a finding of increased disability; the majority of his complaints were referable to problems with work and family. Accordingly, since the veteran's claim for an increased disability evaluation was submitted on July 21, 1988, and the evidence of record is insufficient to support a finding of increased disability in the year prior to July 21, 1988, the appropriate effective date for the increased disability evaluation of 30 percent is the date of receipt of the claim, i.e., July 21, 1988. 38 U.S.C.A. § 5110. Thus, the Board is unable to grant the veteran's appeal. The evidence is not so evenly balanced as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. The Board notes the veteran's testimony at the September 1991 hearing that he had a hearing in May 1988 in connection with an appeal from the March 1987 denial; however, a review of the evidence of record reflects that the hearing that the veteran is alluding to was conducted in May 1989, not May 1988, and was conducted in connection with the current appeal. II. Total Disability Evaluation The veteran maintains that he is unable to work due to the severity of his service-connected disabilities. He has reported a high school education and occupational experience with the Post Office. He last worked in March 1991. His service-connected disabilities consist of PTSD and lumbosacral strain. A. Schedular Total Disability Evaluation In order to determine whether the veteran is entitled to a total disability evaluation, the appropriate disability evaluation for each of the veteran's disabilities must be determined. As noted above, the veteran's PTSD warrants a disability evaluation of 30 percent and his lumbosacral strain warrants a disability evaluation of 20 percent. Applying these disability evaluations to 38 C.F.R. § 4.25, Table I, the veteran's combined disability evaluation is 60 percent. Thus, the veteran is not totally disabled due to service-connected disabilities. 38 C.F.R. § 4.16 (a). B. Unemployability Total disability evaluations for compensation are also warranted where the schedular rating is less than total and the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. However, if the Board finds that the veteran's service-connected disabilities are of sufficient severity to preclude all forms of substantially gainful employment, a total disability evaluation is warranted. As noted above, the veteran's service-connected disabilities are PTSD and lumbosacral strain. Although the service-connected low back condition has been essentially stable, the Board observes that the veteran's most recent work was as a letter carrier with the Post Office, a position which certainly would aggravate such a condition. The veteran's PTSD, as noted above, in and of itself, significantly affects his ability to function in an occupational setting. He most recently was employed in March 1991. Psychiatric examinations since that time have given no indication that his psychiatric condition is improving. Accordingly, taking into account the combined functional impairment attributable to the service-connected disabilities, the Board finds that it is as least as likely as not that they have rendered him unemployable. Thus, a total rating based on individual unemployability is in order. 38 C.F.R. §§ 3.340, 3.341, 4.16. The benefit of the doubt again has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a neck disorder is dismissed. Entitlement to a disability evaluation of 50 percent for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a disability evaluation greater than 20 percent for lumbosacral strain is denied. Entitlement to an effective date prior to July 21, 1988, for the assignment of a 30 percent disability evaluation for PTSD is denied. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities is granted, subject to the law and regulations governing the payment of monetary benefits. WAYNE M. BRAEUER 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.