BVA9501096 DOCKET NO. 91-18 885 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder, currently rated as 30 percent disabling. 2. Entitlement to service connection for peripheral neuropathy. 3. Entitlement to an increased (compensable) evaluation for external hemorrhoids. 4. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the left elbow. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from June 1942 to January 1947, from September 1950 to February 1952, and from November 1952 to May 1958. He was a prisoner of war of the German government from July 1944 to May 1945. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was last before the Board of Veterans' Appeals (Board) in December 1993, at which time it was remanded for further development. Following completion of the requested development, a rating decision entered in March 1994 continued to deny each issue on appeal, and a Supplemental Statement of the Case was mailed to the veteran the following month. The appeal was returned to and redocketed at the Board in October 1994. For reasons that will become clear below, the issue of entitlement to an increased rating for post-traumatic stress disorder will be addressed in the decision below. The remaining issues on appeal, the final three issues listed on the title page, will be addressed in a remand appearing at the end of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran states that he experiences nightmares related to his wartime experiences and that his ability to maintain favorable relationships with people is severely impaired. He contends, in essence, that his service-connected post-traumatic stress disorder is more severely disabling than currently evaluated. 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 preponderance of the evidence supports the veteran's appeal for an increased rating for post-traumatic stress disorder. FINDING OF FACT Current manifestations of the veteran's service-connected post- traumatic stress disorder include frequent nightmares related to wartime experiences and negligible social life, productive of considerable overall social and industrial impairment. CONCLUSION OF LAW The schedular criteria for a 50 percent rating for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7 and Part 4, Diagnostic Code 9411 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's claim for an increased rating for post-traumatic stress disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied, with respect to such claim, that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1993). Service connection is in effect for post-traumatic stress disorder, adjustment disorder with depressed mood, for which the RO has assigned a 30 percent rating under the provisions of Code 9411 of the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1993), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's post-traumatic stress disorder. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical history pertaining to the veteran's post-traumatic stress disorder. Under the schedular criteria, the evaluation of the veteran's post-traumatic stress disorder turns on the severity of his overall social and industrial impairment. A 30 percent evaluation is warranted where there is definite social and industrial impairment; a 50 percent evaluation requires considerable social and industrial impairment. If such impairment is severe, a 70 percent evaluation is warranted. In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 (1993) was "qualitative" in character, whereas the other utilized 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 large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." With these considerations in mind, the Board will address the merits of the claim at issue. When examined by VA in January 1992, the veteran complained of nightmares which had increased in frequency to three to four times weekly as a result of the Gulf War and Pearl Harbor anniversary, which brought back memories of his captivity as a prisoner of war during World War II. He indicated that he had not worked since 1982, and that he was then living alone in a trailer. Findings on mental status examination included a depressed mood, without evidence of a thought disorder, and fair insight and judgment. The examination diagnosis was post- traumatic stress disorder syndrome with depression, chronic, severe. When examined by VA in January 1994, the veteran indicated that he was constantly irritable, and that he continued to experience nightmares three to four times a week. He indicated that he avoids war movies and crowds, and that he had no social life, although he made some efforts to try to speak to people. The examiner noted that there was no hypervigilance but that startle response was present and the veteran showed some evidence of insomnia, loss of energy, occasional crying spells and feelings of panic. Findings on mental status examination in January 1994 included angry and depressed mood, although cognition was grossly intact and the veteran's memory was good. There was no evidence of any thought disorder, and the veteran denied delusions or hallucinations. Insight and judgment were grossly intact. The examination diagnosis was post-traumatic stress disorder, chronic, severe. The examiner commented that the veteran appeared to have made no improvement in the last two years since he had previously seen the veteran. In considering the veteran's claim for an increased rating, the Board finds it significant that, when the veteran was most recently examined by VA in January 1994, at which time he continued to complain of nightmares of the same frequency as was shown on VA examination in January 1992, he was found to exhibit symptomatology, including startle response with evidence of occasional crying spells and feelings of panic, of which there was no indication on the earlier VA examination. In addition, while the report of the January 1992 examination reflects that the veteran was then living alone in a trailer, he elaborated on the January 1994 examination that, despite some efforts on his part to initiate communication with others, he avoided people and experienced no social life. The Board further notes that, except for being briefly employed by the census bureau in 1990, the veteran has been unemployed since 1982 and that the report of his January 1994 VA examination reflects global assessment of functioning levels, including a 55 scale at the time of such examination, indicative of difficulty in functioning in an occupational setting. In light of the foregoing observations, the Board is of the opinion that the veteran's post-traumatic stress disorder is currently manifested by sufficient symptomatology to be productive of considerable social and industrial impairment, warranting entitlement to a 50 percent evaluation. In further considering, however, whether entitlement to a 70 percent rating, which requires severe social and industrial impairment, for post-traumatic stress disorder is warranted, the Board would emphasize that, while the veteran's overall disability was characterized as "severe" on the January 1992 VA examination as well as his most recent examination by VA in January 1994, the actual symptomatology reported on each of those examinations, to include no evidence of a thought disorder, fair insight and judgment, cognition described as grossly intact and memory described as good, is found to be less than severe in nature. It should be noted that the same examiner conducted both examinations. In making the foregoing observation, the Board would point out that, under the provisions of 38 C.F.R. § 4.130 (1993), the severity of a psychiatric disability is based upon actual symptomatology, and an examination classification as to the severity of a mental disorder, such as "moderate" or "severe", is not, in and of itself, determinative; rather, the symptomatology and analysis thereof must also be considered. In view of the actual collective symptoms reported on the 1992 and 1994 VA examinations, it is concluded that the overall symptomatology currently manifested is commensurate with a 50 percent evaluation. Accordingly, even after giving due consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, the Board concludes that an evaluation in excess of 50 percent for the veteran's post-traumatic stress disorder is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7 and Part 4, Diagnostic Code 9411. ORDER An increased evaluation for post-traumatic stress disorder is granted, to the extent indicated, subject to the governing criteria applicable to the payment of monetary payments. REMAND With respect to the veteran's claim for service connection for peripheral neuropathy, he contends that he has peripheral neuropathy involving the lower part of both legs and hands, which he attributes to exposure to cold while he was a prisoner of war during World War II. In this regard, the veteran, who has diabetes, was neurologically examined by VA in January 1994, at which time he related a history of low back pain dating from the early 1950's, related to the slippage of discs in the lumbar region and with associated pain radiating into his legs. It was the VA neurologist's impression that the veteran had sustained spondylolisthesis with associated radiculopathy, especially into the left leg; and that there also appeared to be peripheral neuropathy, motor and sensory type, in the lower "and distal extremities, which may be related to the low back injury or to cold trauma to the extremities" during the veteran's internment as a prisoner of war. Following a review of the entire record, and inasmuch as the VA neurologist's association of the veteran's peripheral neuropathy with inservice exposure to cold is shown to be speculative, the Board is of the opinion that another VA neurology examination would be helpful. As pertinent to the veteran's claims for increased ratings for his service-connected external hemorrhoids and for residuals of a fracture of the left elbow, the Board is also of the opinion that current VA examinations bearing on these disabilities should be performed before related appellate adjudications are made. Accordingly, the case is REMANDED for the following: 1. The RO should contact the veteran and request him to identify the names, addresses, and approximate dates of treatment for any health care provider(s), to include any VA medical facility other than the VA Medical Center in Loma Linda, California, who may possess additional records pertinent to his claims. Thereafter, in light of the response received and after obtaining any necessary authorization, the RO should take appropriate action to obtain copies of any clinical records indicated. In any event, the RO should obtain copies of all clinical records reflecting treatment rendered the veteran since October 1992 at the VA Medical Center in Loma Linda, California. 2. Thereafter, the RO should arrange for the veteran to undergo the following examinations: a. A VA examination by a board certified neurologist, if available, who has not previously examined the veteran, to determine the nature and extent of any ascertained peripheral neuropathy. In addition, if the veteran is found to have peripheral neuropathy, the examiner is specifically requested, after reviewing the record to specifically include the reports pertaining to VA orthopedic and neurological examinations performed in January 1994, to offer an opinion as to the etiology of the peripheral neuropathy, to include whether it is at least as likely as not that it is related to exposure to cold during service in the mid-1940's. Any special diagnostic studies deemed necessary should be performed, and the claims folder must be made available to the examiner for review prior to the examination. The rationale for all opinions expressed should be fully explained. b. A VA orthopedic examination to determine the current severity of the veteran's service-connected residuals of a fracture of the left elbow. An X-ray examination is essential, and any other diagnostic studies deemed necessary should be performed. The claims folder should be made available to the examiner for review prior to the examination. c. A VA general medical examination to determine the current severity of the veteran's service-connected external hemorrhoids. Any special diagnostic studies deemed necessary should be performed, and the claims folder should be made available to the examiner for review prior to the examination. 3. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the issues on appeal. 4. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be provided a Supplemental Statement of the Case on all issues in appellate status, and given the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusions, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is notified. J. J. SCHULE 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, (CONTINUED ON NEXT PAGE) 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The above remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).