BVA9501291 DOCKET NO. 93-08 907 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from November 1966 to November 1968. This appeal is taken from a Regional Office (RO) determination in May 1992 which granted service connection for PTSD, and assigned a 10 percent evaluation effective from October 16, 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his PTSD is more disabling than the current rating reflects. He expressed frustration with a physician's characterization of his disability as stable inasmuch as, he asserts, he is currently symptomatic. He also asserts that the current disability rating does not reflect his social and industrial impairment. 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(s). 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 an increased rating for PTSD. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of this appeal has been obtained. 2. The veteran's PTSD is currently manifested by anxiety and complaints of intrusive thoughts, flashbacks, and nightmares of combat experience, productive of no more than mild social and industrial impairment. 3. The case does not present an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render inapplicable the regular schedular criteria. CONCLUSION OF LAW An evaluation in excess of 10 percent for PTSD is not warranted. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 3.321, 4.132, Diagnostic Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, he has presented a claim that is plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further duty to assist the veteran in the development of his case is mandated by § 5107. The criteria for evaluating the severity of the veteran's PTSD symptomatology are set forth in 38 C.F.R. § 4.132, Part 4, Diagnostic Code 9411 (1993), Schedule for Rating Disabilities (Schedule herein). Under these criteria, an evaluation of 30 percent is warranted when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency and reliability levels so as to produce definite industrial impairment. The current 10 percent schedular evaluation requires less than the criteria for a 30 percent evaluation, with emotional tension or other evidence of anxiety productive of mild social and 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 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); 57 Fed. Reg. 4753 (1994). 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 claim at issue. The veteran underwent a VA psychiatric examination in February 1992. He complained of nightmares with impaired sleep, and flashbacks. He reported that the symptoms had been responsive to medication treatment such that he had been helped "quite a bit," and "doesn't feel as anxious." The veteran indicated that he had not worked since military service, didn't have many friends, spent most of his time at home helping his wife, and preferred to be alone. He enjoyed occasionally fishing. On mental status examination, the veteran was pleasant and cooperative. He made good eye contact, and his psychomotor activity was neither increased nor decreased. His speech was spontaneous. His answers were relevant and coherent. His thinking was logical and goal oriented. His mood was euthymic. His affect had good range and intensity, and was appropriate to his thought content. His remote and recent memory, insight and judgment were characterized as good. The diagnosis was post-traumatic stress disorder. VA outpatient treatment reports dated from October 1991 to October 1992 reveal that the veteran was seen primarily for disabilities not at issue and of a nonpsychiatric character. The record reflects that the veteran sought psychiatric treatment, as an outpatient, in October 1991 when he complained of frequent night crying. On mental status examination, his mood was characterized as "euthymic to slightly depressed." His affect was appropriate. The veteran reported eating at night secondary to anxiety. He was prescribed Ativan. When seen the next month, the veteran reported he was sleeping "very well" with medication, and had had less dreams. He reported no other problems. On objective evaluation, his mood was noted to be euthymic, his memory was intact, and his affect was appropriate. The assessment was "[i]mproved with regards to insomnia and other PTSD [symptoms]." Essentially the same findings and clinical assessment were noted when seen at a VA mental hygiene clinic in January, April and July 1992. When seen in October 1992, after the veteran had been provided a statement of the case which contained notice of the criteria necessary for a higher disability rating for the PTSD, the veteran reported he had "industrial impairment," but had not reported it earlier because he had thought it was normal. The examiner noted the veteran indicated that this means that he feels people are talking about him. He reported an urge to cry. On objective evaluation, it was noted his mood was mildly depressed, and his affect was appropriate. In reviewing the evidence of record, the Board does not find that the schedular criteria for an increased evaluation under Diagnostic Code 9411 have been met so as to warrant an increased evaluation for the veteran's PTSD symptomatology. In this regard, it is noted that clinical findings have consistently identified the veteran's PTSD symptoms as having improved with use of medication. He has no reported increase or decrease in psychomotor activity, and he has never been described as more than mildly depressed. His memory, insight and judgment have remained good. He has reported no other problems relative to his PTSD when seen on outpatient treatment, except when he described industrial impairment due to his feeling that people were talking about him. However, this symptom has not been clinically shown to have resulted in greater social and industrial impairment than that contemplated in his current disability rating. He maintains a marital and family relationship, and remains able to enjoy fishing as a hobby. While the veteran has not worked since service, this has not been clinically reported or shown to be due to the service-connected PTSD. The veteran's PTSD symptoms, consistently clinically evaluated as slight or mild, are not consistent with "more than moderate" as contemplated in the next higher evaluation. Hence, no more than a 10 percent schedular evaluation is warranted. The Board further notes that the case does not present an exceptional or unusual disability picture with such related factors as clinically demonstrated marked interference with employment or frequent periods of hospitalization so as to render impractical the application of regular schedular standards. 38 C.F.R. § 3.321 (1992). As such, the preponderance of the evidence is against the claim, and an increased evaluation is not warranted. ORDER Entitlement to an increased rating for PTSD is denied. U. R. POWELL 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.