BVA9506303 DOCKET NO. 93-11 138 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his father ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from March 1968 to November 1970. The appeal arises from a September 1991 rating decision in which the Regional Office (RO) granted service connection for post- traumatic stress disorder and assigned a 30 percent evaluation for that disability, effective April 14, 1989. The veteran filed a notice of disagreement in December 1991. The Board remanded the case in July 1993. A rating decision dated in May 1994 assigned a 50 percent evaluation for post-traumatic stress disorder, effective April 14, 1989, and denied a total disability rating for compensation purposes based on individual unemployability. The RO also sent the veteran a letter in June 1994, which included his appellate rights and a copy of the May 1994 rating decision denying a total disability rating for compensation purposes based on individual unemployability. However, the veteran has not filed a notice of disagreement with the RO's decision to deny the a total disability rating for compensation purposes based on individual unemployability. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that a higher evaluation is warranted for his post-traumatic stress disorder. He asserts that he is unable to work as a result of his service-connected psychiatric disorder. Additionally, it has been requested that the Board obtain an opinion from an independent medical expert as to whether the veteran's post-traumatic stress disorder has matured into a psychosis. 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 entitlement to an increased evaluation for post-traumatic stress disorder. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. This case does not include medical complexity or controversy. 3. Post-traumatic stress disorder is productive of no more than considerable social and industrial impairment. 4. The veteran's post-traumatic stress disorder does not present an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for obtaining an opinion from an independent medical expert are not met. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1994). 2. The criteria for an evaluation in excess of 50 percent for post-traumatic stress disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the claim for entitlement to an increased evaluation for post-traumatic stress disorder is "well-grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claim is plausible, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107. It has been requested that the Board obtain an opinion from an independent medical expert as to whether the veteran's post- traumatic stress disorder has matured into a psychosis. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the VA. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of the VA. An appropriate official of the institution will select the individual expert, or experts, to provide an opinion. 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(d). The preponderance of the evidence tends to show that schizophrenia pre-existed post-traumatic stress disorder. Moreover, a VA examiner who recently examined the veteran separately evaluated the severity of the two psychiatric disorders. Therefore, the Board finds this case does not involve any medical complexity or controversy such as to warrant referral of the case to an independent medical expert. Review of the record also discloses that the Social Security Administration (SSA) sent copies of medical records to the VA but did not send a copy of its decision regarding the veteran's claim for disability benefits. According to a VA hospital summary dated from September to October 1986, the veteran was receiving Social Security benefits at that time. Thus, any conclusion of the SSA as to the veteran's ability to work was based on the severity of the veteran's disabilities almost 10 years ago. Moreover, the records received from the SSA are dated in 1983 and show treatment primarily for schizophrenia with only one reference to signs and symptoms of post-traumatic stress disorder in a VA outpatient treatment record. Under the circumstances, the Board finds that another remand to obtain a copy of any SSA granting disability benefits would not provide any probative evidence with regard to the current claim for an increased evaluation for post-traumatic stress disorder. The criteria for evaluating the veteran's service-connected psychiatric disorder are found at 38 C.F.R. § 4.132, Diagnostic Code 9411. Under that Diagnostic Code, a 50 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency are so reduced as to result in considerable industrial impairment. A 70 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, or where there are total incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. A 100 percent evaluation is also warranted where the veteran is demonstrably unable to obtain or retain employment. Johnson v. Brown, No. 93-89 (U.S. Vet. App. Sept. 28, 1994); 38 C.F.R. Part 4, Diagnostic Code 9411. In light of the extensive medical evidence in this case and the veteran's two primary psychiatric diagnoses, one service- connected and one nonservice-connected, the medical evidence will be described chronologically. The veteran's service medical records show that he complained of bad dreams involving firefights while in service. Examination revealed no evidence of psychosis, and the impression was stress reaction. After service, VA hospital records show that the veteran was hospitalized for treatment of schizophrenia numerous times between 1983 and 1988. While the veteran did complain of war related dreams while hospitalized in August 1986, most of the hospital records dated from 1983 to 1988 do not include a diagnosis of post-traumatic stress disorder. The first medical evidence tending to support a diagnosis of post-traumatic stress disorder was when the veteran was hospitalized at a VA medical facility from September to November 1988. At that time, he complained of hearing voices which were both related and unrelated to Vietnam. According to the hospital records, the veteran was evaluated for post-traumatic stress disorder and he had elements of that disorder, probably being both schizophrenic and having probable post-traumatic stress disorder. Chronic paranoid schizophrenia and post-traumatic stress disorder were also diagnosed during a period of hospitalization at a VA facility from July to August 1991. The veteran's complaints at that time included intense recurrent nightmares about Vietnam. Also, both disorders were considered stable and baseline. The veteran was also examined by a Board of two VA psychiatrists in August 1991 who determined that the veteran suffered from both post-traumatic stress disorder and schizophrenia. The examiners discussed the veteran's service while in Vietnam and his psychiatric symptoms at the time of the examination. It was their conclusion that the veteran "ha[d] not been able to hold a steady job and [was] markedly impaired due to his Post Traumatic Stress Disorder and Schizophrenia; the latter of which [was] manifested by characteristic psychotic symptoms such as delusions, hallucinations and a deterioration in functioning." According to a VA outpatient treatment record dated in July 1992, the veteran was still having Vietnam related nightmares and was hearing voices. He also remained paranoid and feared that someone might kill him. The VA psychiatrist noted that the "[veteran] remain[ed] chronically ill and [was] unemployable in view of [the] severity of [his] psychiatric conditions." In records pertaining to a VA period hospitalization from August to September 1992, the examining psychiatrist noted that the veteran was admitted with signs and symptoms consistent with chronic paranoid schizophrenia exacerbation and post-traumatic stress disorder and discussed the two disorders separately. When discussing post-traumatic stress disorder, the examiner noted the veteran's complaints of insomnia, flashbacks, frequent nightmares and avoidant behavior. When discussing schizophrenia, the examiner related that the veteran's psychotic symptoms included demonic possession and command hallucinations to kill himself with awareness that the voices were ego-dystonic and ability to control the urges and body dysmorphism. According to a VA outpatient treatment record dated in November 1992, the veteran clearly had a strong chronic paranoid schizophrenia component on top of his post-traumatic stress disorder. Another VA outpatient treatment record dated in April 1993 shows that the veteran complained of nightmares regarding his Vietnam experiences and decreased sleep. The impression was increased post-traumatic stress disorder symptoms. VA hospital records dated from May to August 1993 include an examiner's conclusion that "[the veteran] continue[d] to be impaired due to psychiatric illness and [was] considered to be completely disabled in the sense that due to his mental problems, he remain[d] unemployable." The diagnoses included chronic paranoid schizophrenia but did not include post-traumatic stress disorder. However, in a letter dated in August 1993, the VA psychiatrist who treated the veteran during that period of hospitalization reported that the veteran was hospitalized for treatment of paranoid schizophrenia and symptoms of post- traumatic stress disorder. That psychiatrist also related that the veteran's psychiatric difficulties precluded him from working. Significantly, the hospital records show that the examiner reported that the veteran complained "at times of flashbacks of Vietnam but actually the symptoms pertaining to Vietnam were very fragmented, relatively infrequent and [were] frankly overshadowed by his psychotic symptoms." In a June 1993 informal hearing presentation, the veteran's representative, Dr. Maurine Johnson, reported having difficulty separating the veteran's chronic paranoid schizophrenia and post- traumatic stress disorder. Dr. Johnson related that the veteran was having problems with his thoughts, reacting to society and becoming a useful citizen because of his post-traumatic stress disorder and schizophrenia. Dr. Johnson also argued that an increased evaluation was warranted for the veteran's post- traumatic stress disorder, which was evaluated as 30 percent disabling at the time, and described the post-traumatic stress disorder as very severe. The veteran was again hospitalized from September to November 1993 and the diagnosis was chronic paranoid schizophrenia with acute exacerbation. Significantly, the diagnoses did not include post-traumatic stress disorder. Furthermore, there is no reference in those hospital records to nightmares or Vietnam related symptoms which have been attributed to post-traumatic stress disorder by other psychiatrists who have examined the veteran. The symptoms which were noted included paranoid delusions. The Board finds that the report of a VA psychiatric examination performed in April 1994 includes the most probative evidence in evaluating the current severity of the veteran's post-traumatic stress disorder. The April 1994 examiner reviewed the veteran's claims file and commented on the severity of the nonservice- connected schizophrenia and the service-connected post-traumatic stress disorder separately while other psychiatrists who examined the veteran and found him markedly impaired or unemployable did not evaluate the disabilities separately. The April 1994 VA examiner reported that the veteran had severe paranoid schizophrenia and that he would be 100 percent disabled due to the schizophrenia even if he had never been to Vietnam. Additionally, the examiner related that the veteran's Vietnam related symptoms included "preoccupation with his Vietnam memories, easy startling, flashbacks, nightmares, etc." and that the symptoms represented moderate post-traumatic stress disorder. Significantly, the examiner also related that "[i]t was unclear [] to what extent some of these symptoms simply represent[ed] the form that his schizophrenic symptoms [were] taking and if he had not been to Vietnam he would be preoccupied about other things." Thus, rather than attribute the veteran's schizophrenia symptoms to post-traumatic stress disorder, the April 1994 VA examiner indicated that some of the veteran's post-traumatic stress disorder symptoms may be symptoms of the nonservice-connected schizophrenia. While it is unknown whether Dr. Johnson who described the veteran's post-traumatic stress disorder as very severe is trained in the fields of psychology or psychiatry, the Board finds the opinion of the April 1994 VA examiner who actually examined the veteran and reported having had no difficulty separating the veteran's post-traumatic stress disorder and schizophrenia more probative. Additionally, at a RO hearing in August 1992, the veteran testified that he had nightmares of Vietnam and that he could not work due to his post-traumatic stress disorder. However, the Board finds the assessment by the VA examiner who most recently examined the veteran more persuasive in evaluating the severity of his psychiatric disorders and especially in separating the post-traumatic stress disorder from the schizophrenia. Where the determinative issue involves a question of medical diagnosis, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Moray v. Brown, 5 Vet.App. 211, 214 (1993). While the April 1994 VA examiner did not specifically link the veteran's symptoms of post-traumatic stress disorder to any social and industrial impairment, he did describe the degree of disability produced by the veteran's post-traumatic stress disorder as moderate. The Board notes that in a precedent opinion dated November 9, 1993, the General Counsel of the VA concluded that "definite," used in describing the degree of social and industrial impairment warranted for a 30 percent for a psychiatric disorder, 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." VA O.G.C. Prec. 9-93 (November 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). In light of the definition of "definite" and the VA examiner's assessment that the veteran's post-traumatic stress disorder was moderate, the Board finds that his post-traumatic stress disorder is certainly not productive of more than considerable social and industrial impairment. 38 C.F.R. § 4.7, Part 4, Diagnostic Code 9411. The Board has also considered the various other provisions of 38 C.F.R. Parts 3 and 4 in accordance with Schafrath v. Derwinski, 1 Vet.App. 589 (1991), but finds that they do not provide a basis upon which to grant an evaluation higher than 50 percent. For example, when the case presents such 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, an extra- schedular evaluation is warranted. 38 C.F.R. § 3.321(b). However, there is no evidence that the veteran's post-traumatic stress disorder has caused interference with employment that is not adequately reflected by the 50 percent currently assigned for that disorder. Nor is there probative evidence that the veteran's post-traumatic stress disorder has required frequent hospitalizations separate and apart from the nonservice-connected schizophrenia. Therefore, an extra-schedular evaluation for that disability is not warranted. 38 C.F.R. § 3.321(b). Finally, when after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b). However, the preponderance of the evidence is against the veteran's claim for entitlement to an increased evaluation for post-traumatic stress disorder. ORDER An increased evaluation for post-traumatic stress disorder is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.