BVA9503450 DOCKET NO. 93-02 138 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for post traumatic stress disorder, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from November 1940 to October 1941 and from July 1942 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision continued a 30 percent rating for the service-connected psychiatric disorder which had been in effect since July 1974. The case was previously before the Board in July 1993, when it was remanded for examination of the veteran and a social and industrial survey. The requested development has been completed. The Board now proceeds with its review of the appeal. In a statement dated in September 1994, the veteran asserted that his service-connected disabilities rendered him permanently and totally disabled. The issue of entitlement to a total disability rating, for compensation purposes, based on individual unemployability has not been developed for appellate consideration. It is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying an increased rating for post traumatic stress disorder (PTSD). He asserts that the disability has increased in severity and is currently producing social and industrial impairment warranting a higher rating. He avers that the examination reports demonstrate increased disability. 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 an increased rating for PTSD. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected PTSD is manifested by flashbacks, nightmares, sleep disturbance, irritability and social withdrawal. 3. The service-connected PTSD does not result in more than definite social and industrial impairment. 4. The veteran's 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 a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 9411 (1994). 2. Failure of the RO to consider or document its consideration of extraschedular ratings and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. All relevant facts have been properly developed. The recent VA examinations and social and industrial surveys were done in accordance with VA guidance and have developed sufficient information to rate the veteran's psychiatric disability. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The report of the August 1945 examination for separation from service shows that the veteran had a chronic mild anxiety reaction manifested by emotional tension and attacks of shaking and trembling and excessive reaction to loud noises. It was noted that he had been momentarily rendered unconscious by the concussion of an artillery shell at Anzio, Italy. On the November 1945 VA examination, the veteran complained of bad dreams and mild attacks of tremors and weakness. The examiner felt that the complaints were consistent with the veteran's combat experience and injuries. The diagnosis was a mild mixed type psychoneurosis. The November 1945 rating decision granted a 30 percent rating for psychoneurosis, mixed type. On the January 1951 VA examination, the veteran's complaints included headaches, difficulty sleeping, nightmares, and being tired and nervous. Mental status findings were essentially normal. His hands were moist and cyanotic with slight dermographia and a coarse tremor of the fingers. The January 1951 rating decision reduced the rating for the service-connected psychoneurosis, anxiety state, to 10 percent. The veteran requested an increased rating in 1978. The RO considered reports from private physicians, VA clinical notes, the veteran's hearing testimony and the report of the June 1978 VA examination. That report shows the veteran complained of headaches, insomnia, nervousness, memory impairment and physical disabilities. The examiner diagnosed a moderate disability due to neurosis, both anxiety and depression. In a February 1979 rating decision, the RO increased the rating for the service- connected anxiety neurosis to 30 percent. Notes show that the veteran came to the VA psychiatry clinic in January 1992 and complained of anxiety and difficulty writing. Subsequent notes show mood and affect disturbances which responded to medication. In May 1992, it was noted that he was angry over the denial of an increased rating. He preferred to be alone. He avoided war stories and did not want to talk about his wartime experiences. A moderate anxiety was noted. The report of the July 1992 VA psychiatric examination shows that the veteran reported flashbacks and avoidance of war related stimuli. He told of being withdrawn, uncomfortable around crowds and increasingly irritable. He was convincingly avoidant about his traumatic experiences. However, when pressed he gave them in further detail. Mental status examination showed that he had a depressed mood and affect. He was very anxious, but in reasonable social control. He had a reasonable range of affect. Other findings were essentially normal. The assessment was that the veteran had fairly typical PTSD symptoms that were more emergent under his current stresses. The diagnosis was PTSD with depression. An August 1992 rating decision continued the 30 percent rating and changed the diagnosis for the service-connected psychiatric disorder to PTSD. The VA clinical notes indicate complaints of depression in August 1992 and irritability in September 1992. In November 1992, the veteran testified at an RO hearing. He reported that increased problems had caused him to stop volunteering at a VA medical center. He briefly described his combat experience. He reported having depression about three quarters of the time. He testified about being too nervous to drive and of having nightmares and sleep and appetite disturbances. He reported that he used to have many friends but was now socially isolated. He also discussed his physical disabilities. On an August 1993 VA psychiatric examination, the veteran reported that the Persian Gulf Crisis had him reliving and reexperiencing many of his wartime traumas. He reported nightmares and trouble sleeping. His wife was present during the examination and said that he did not want to go anywhere and sat alone everyday. The diagnosis was PTSD with a moderate effect on social functioning. During an October 1993 social and industrial survey, the veteran recounted his wartime experiences. He reported that he worked at a paper mill until 1978 when he took a disability retirement. After that, he did some work around a used car lot. Currently, he was fully retired. He reported problems with his nerves. He became angry easily. He had trouble maintaining satisfactory interpersonal relationships because of his anger and irritability. He had no really close friends. He reported disturbed sleep, with frequent dreams and occasional nightmares of his wartime experiences. The veteran's disruptive conduct at a VA dental clinic, while trying to assist another veteran, was noted in an October 1993 letter. The report of an April 1994 VA examination shows that the veteran said that he could not sleep well and had frequent nightmares of his World War II experiences. He also reported memory loss and flashbacks. He reported difficulty in getting along with other people. He stated that his symptoms increased following the gulf war. Objectively, he was alert, oriented, coherent, relevant and well organized. His mood was mildly dysphoric and anxious. His affect was appropriate to his mood and thought process. He reported being irritable with a low frustration tolerance. He described auditory and visual hallucinations which were all related to his wartime experiences. His memory, insight and judgment were fair. The diagnosis was PTSD, delayed. The examining physician concluded that there was mild to moderate social and industrial impairment due to the PTSD. The report of a May 1994 VA social and industrial survey contains a description of the veteran's combat experiences. He had worked at a paper mill and at a used car lot but was now fully retired. His relationship with his wife was described as reasonably stable. He stayed home most of the time and seldom went out. Crowds bothered him. He preferred to be alone. He acknowledged that he was irritable, angered easily, and had trouble establishing and maintaining interpersonal relationships. He reported dreams and flashbacks of his combat experiences. The VA social worker interviewed the veteran's wife, neighbor, a former co-worker and two other people who knew the veteran well. They all related his inability to get along with others. The social worker expressed the opinion that the veteran's PTSD had no significant impact on his employment as he had been gainfully employed until 1978. He further noted that the veteran was not seeking employment but if he was, his prospects were practically nil because of his age, psychiatric condition and personality. Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). The current 30 percent rating for PTSD contemplates definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with the psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. 38 C.F.R. Part 4, Code 9411 (1994). 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 was "qualitative" in character, where as 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 the purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for it 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 the term "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). The next higher rating, 50 percent, requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired, and that, by reason of psychoneurotic symptoms 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). VA bases its decisions on medical opinions. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this case, the record shows that the August 1993 and April 1994 VA examinations concluded with the assessment that the veteran had a moderate impairment due to his service-connected PTSD. Since the definite impairment required for the current rating represents a degree of disability that is more than moderate, a higher rating may not be assigned. While there was been some increase in the symptomatology, it is not shown to be of greater severity than that contemplated within the "definite" range, and does not approximate the considerable impairment required for the next higher rating. 38 C.F.R. § 4.7 (1994). Consequently, a higher rating for PTSD is not warranted. This case 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). Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER An increased rating for PTSD 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.