Citation Nr: 0006419 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 94-24 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder. 2. Entitlement to a compensable evaluation for the residuals of fracture of the coccyx. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and J. D. ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from October 1966 to September 1968. During the course of a Supplemental Statement of the Case dated in February 1998, the Regional Office (RO) granted a permanent and total disability rating for pension purposes, effective from June 3, 1994. Accordingly, that issue, which was formerly on appeal, is no longer before the Board of Veterans' Appeals (Board). FINDINGS OF FACT 1. The veteran's service-connected post-traumatic stress disorder is currently productive of considerable social and industrial impairment, with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 2. The veteran's service-connected fracture of the coccyx is, at present, essentially asymptomatic. 3. The veteran's service-connected disabilities are, at present, insufficient to preclude his participation in all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. A 50 percent evaluation for service-connected post- traumatic stress disorder is warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § Part 4, Code 9411 (1998). 2. A compensable evaluation for the service-connected residuals of a fracture of the coccyx is not warranted. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § Part 4, Code 5299-5292 (1998). 3. The veteran's service-connected disabilities do not render him individually unemployable. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In a decision of July 1979, the Board denied entitlement to service connection for degenerative disc disease of the 5th lumbar vertebra and 1st sacral segment. In reaching that determination, the Board found that no clinical medical evidence had been submitted in support of the veteran's reopened claim which showed that the veteran exhibited degenerative disc disease of the 5th lumbar vertebra and 1st sacral segment in service, or for some time thereafter. The Board additionally found that the medical evidence of record did not show any etiological relationship between the veteran's service-connected residuals of a fracture of the coccyx and degenerative disc disease. In a subsequent decision of March 1987, the Board once again denied entitlement to service connection for degenerative disc disease at the level of the 5th lumbar vertebra and 1st sacral segment, finding no relationship between the veteran's degenerative disc disease and any incident or incidents of his period of active military service. In a statement of May 1993, the veteran's private psychologist wrote that the veteran made persistent efforts to avoid thoughts or feelings associated with his inservice trauma, and attempted to avoid activities or situations which aroused recollections of that trauma. It was additionally noted that the veteran exhibited markedly diminished interest in significant activities, as well as irritability and outbursts of anger. On Department of Veterans Affairs (VA) orthopedic examination in August 1993, the veteran gave a history of having been "accidentally crushed" between a howitzer and a 5-ton truck in 1967. Reportedly, the ball on the hitch of the howitzer struck the veteran in the coccyx area, causing pain there. Additionally noted was that, at the time of said incident, the veteran's back had become "quite twisted." Physical examination revealed minimal tenderness to palpation of the veteran's coccyx. Radiographic studies showed evidence of a disruption of the sacrococcygeal ligament in the posterior part of the coccyx. The pertinent diagnosis was disruption of the sacrococcygeal ligament with coccygodynia, which, in the opinion of the examiner, would respond to simply avoiding stress to the coccyx. Further noted was that, while the veteran's condition occasionally required excision, his low back disability was actually "quite static and only minimal." In August 1993, a VA psychiatric examination was accomplished. At the time of examination, the veteran stated that he had received no psychiatric treatment since his admission to the Houston VA Medical Center many years ago. Reportedly, were the veteran to start "feeling bad," he would stay away from crowds, and remain at home listening to his record collection. On mental status examination, the veteran's mood was generally euthymic, with occasional irritability. His affect was of a normal range, and appropriate to express thought content. At the time of examination, the veteran exhibited some underlying anger which he kept in control. His speech was normal in rate and amount, and his content was relevant and goal-directed. There was no evidence of hallucinations or delusions, and the veteran was well oriented. The pertinent diagnosis was chronic post-traumatic stress disorder. In a rating decision of December 1993, the RO granted service connection (and a 30 percent evaluation) for post-traumatic stress disorder. In May 1994, the veteran was hospitalized at a VA medical facility for complaints of weakness and numbness in his left face, arm, and leg. At the time of admission, the veteran gave a history of L4-5 radiculopathy for many years, resulting in bilateral weakness of his lower extremities and chronic low back pain. According to the veteran, this was "secondary" to a motor vehicle injury sustained during his period of military service in 1970. Additionally noted was that, in 1984, the veteran had undergone a surgical fusion in the L4-5 region. On physical examination, there was an obvious left facial droop, and the veteran was unable to move his left upper extremity. The veteran's speech was fluid, though he did demonstrate some mild dysarthria. There was some decrease to gross touch and pinprick on the veteran's face on the left side in the distribution of V1 through V3. Additionally noted was a left facial palsy which was central in nature, with the veteran unable to raise his eyebrows. Motor strength in the right upper extremity was 5/5, and in the right lower extremity 4+ to 5-/5. The veteran's left upper extremity was 0/5 at the deltoid, but otherwise 1/5, and the left lower extremity was 0/5. During the course of the veteran's hospitalization, it was noted that he had a hemiparetic gait and facial droop, though following his transfer to the ward, he regained some of his motor function on the left side. The pertinent diagnoses noted at the time of discharge were right subcortical cerebrovascular accident, resolved; and chronic low back pain. Results of VA radiothallium myocardial perfusion imaging conducted in July 1995 were suggestive of mild myocardial ischemia in the inferoseptal area, and possible ischemia in the inferior area "in the LB." In August 1995, the veteran was hospitalized at a VA medical facility with a complaint of weakness on his left side. At the time of admission, the veteran stated that the aforementioned "weakness" started on his left face, and progressed to his left arm and leg. The veteran additionally stated that, while he had recovered from his previous stroke, he had not regained all of his strength on the left side. The pertinent diagnoses were status post right cerebrovascular accident with left sided weakness; history of right cerebrovascular accident in the past; and new onset hypertension. In August 1996, an additional VA psychiatric examination was undertaken. At the time of examination, it was noted that the veteran's claims folder was available. The veteran admitted that he was sometimes short tempered, and "upset" when there was "a lot of noise around him." The veteran was troubled by his inability to work, and this reportedly made him irritable. According to the veteran, he experienced difficulty falling sleep, and staying asleep. The veteran stated that he spent most of his time at home, and, on those occasions when he went out, was "constantly on guard" in the expectation that some harm might come to him. On mental status examination, the veteran was alert, friendly and cooperative. His mood was euthymic and his affect was of a normal range and appropriate to his thought content. The veteran's speech was normal in rate and amount, and its content was relevant and goal directed. There was no evidence of either hallucinations or delusions, and the veteran was well oriented. The diagnostic impression was chronic post-traumatic stress disorder. The Global Assessment of Functioning score was 65, both currently, and for the previous year. On VA general medical examination, likewise conducted in August 1996, the veteran stated that he had a high school education, and had worked as an air-conditioning and TV repairman for several years. The veteran additionally stated that he had been a truckdriver for 6 years, and had done computer analysis for hospitals for a year and a half. According to the veteran, he had done electronic work for 5 1/2 years, and worked for Hughes Tool Company as a machinist until 1979, when he stopped working. At the time of examination, the veteran reported that he had fractured his tailbone in 1967, following which he was assigned "light duty." Additionally noted was an injury to the 4th and 5th lumbar vertebrae, following which he underwent surgery at a private hospital in October 1984. On physical examination, the veteran showed mild exertional dyspnea related to obesity. His blood pressure was 150/80, and he was in no distress. Examination of the veteran's ears showed evidence of mild hearing loss. There was no evidence of any carotid bruits, and no jugular venous distention or thyromegaly. The veteran's lungs were clear, without wheezes, rhonchi or rales. The veteran's abdomen was soft and benign, though very obese, with stria on the abdominal wall. The veteran showed no peripheral edema, and his peripheral pulses were palpable. The veteran's gate was within normal limits, though he walked with a walking cane, favoring the left leg. The veteran's lumbosacral spine was without deformity, though the mobility of the lumbosacral segment was limited. Bilateral straight leg raising was to 30 degrees, with a negative ability to raise his legs even with encouragement. At the time of evaluation, there was some slight left arm weakness, and moderate weakness of the veteran's left leg. Radiographic studies of the veteran's lumbar spine showed a normal alignment of the vertebral bodies, and normal disc spaces, with the exception of minor narrowing in the area of the 5th lumbar vertebra and 1st sacral segment compatible with early degenerative disc disease. Small anterior osteophytes were present, though the pedicles were well outlined and normal. There was minimal increased bony density in both the sacroiliac joints compatible with sacroiliitis. The pertinent diagnoses noted at the time of examination were cerebrovascular accident, old date, with minimal residual; chronic lower back pain, status post lumbar laminectomy in 1984; and mild hearing loss. In March 1999, a VA orthopedic examination was accomplished. At the time of examination, it was noted that the veteran's claims folder was available, and had been reviewed. According to the veteran, in 1967, while preparing for bivouac, he had been "caught" between a 5-ton truck and a howitzer. At the time, the veteran was treated conservatively. According to the veteran, the trailer ball struck him in the stomach, and the blade struck him in the back. He subsequently finished his military career, and, on discharge, worked as a shipping and receiving clerk, truckdriver, computer assemblyman, and, most recently, as a machinist with a tool company. According to the veteran, he had been unemployed since 1979 following his being told by the VA that "he could no longer work." When asked during the course of the interview whether he had ever suffered any "on- the-job" injury to his lumbar spine, the veteran denied any significant injury. However, upon review of his claims folder, it appeared that he not only had a significant injury to his back, but that such injury resulted in surgery. The veteran stated that, in 1994, he had undergone abdominal surgery, specifically, a hernia repair, necessitated by the "inservice" impact of the "ball in the stomach." However, a review of the veteran's claims folder suggested that, at the time of the aforementioned incident, he had an "acute abdomen" with appendicitis, followed by surgery. The veteran stated that he had experienced two cerebrovascular accidents, one in 1995 and another in 1996, both of which left him with right-sided weakness. Currently, the veteran complained of low back pain accompanied by left- leg weakness, for which he took medication. On physical examination, the veteran moved as if his left leg were giving out from under him. The veteran was not using a cane or crutch which, in the opinion of the examiner, was unusual, given the fact that, were his left leg to be truly unstable, he should be more careful in using "gait aids." Nevertheless, there was tenderness to palpation only along the midline of the lumbosacral junction. There was no tenderness along the coccygeal or sacral region, and neurological evaluation was remarkable only for a drop reflex on the left knee. According to the examiner, the "breakaway weakness" noted in the dorsiflexors of the veteran's left ankle were "invalid." The veteran manifested 3 out of 5 Waddell signs, which was significant for symptom amplification, and not organic pain behavior. This included low back pain with concerted truncal pelvic rotation, low back pain with superficial pressure, and low back pain with axial loading of the cervical spine. Radiographic studies of the coccyx revealed no evidence of any obvious fracture, though the veteran did have some slight angulation of the coccyx at the sacrococcygeal junction, which might be physiologic. The pertinent diagnosis noted at the time of examination was status post coccyx fracture, by history, asymptomatic. In the opinion of the examiner, numerous inconsistencies during the veteran's evaluation precluded accurate assessment of his low back condition. However, with respect to the veteran's coccyx, there was no evidence of disability or of prolonged symptomatology. On VA psychiatric examination, likewise conducted in March 1999, the veteran's claims folder was available and reviewed. According to the veteran, his current psychiatric status had not changed much. The veteran indicated that he continued to dream about Vietnam, and did not sleep well. It was additionally noted that, following the completion of air conditioning and refrigeration school, the veteran began to experience problems with his back and legs, with the result that he stopped working in 1979 due to his "orthopedic problems." On symptom review, the veteran stated that he slept approximately 2 to 3 hours per night. He further commented that he felt badly about himself, and that his energy level and concentration were "somewhat down." According to the veteran he sometimes became "weak and shaky." No psychomotor abnormalities were noted, and the veteran denied any suicidal ideation. On mental status examination, the veteran was alert and well oriented. His fund of information and ability to abstract were intact, and he scored 30 out of 30 on a mini mental status examination. The veteran's speech was fluent, at a normal rate and rhythm. His mood was euthymic and his affect full and appropriate to his expressed thoughts with no lability in evidence. The veteran's thought processes were coherent, though he was preoccupied with his physical complaints. There was no evidence of any psychotic process, and the veteran was completely without any specific idea, intention or plan of harming himself or others. The pertinent diagnosis was chronic post-traumatic stress disorder, with a current Global Assessment of Functioning score of 55. Following examination, the examiner commented that he had given the veteran a Global Assessment of Functioning score of 55 because, in his opinion, the veteran exhibited moderate symptomatology. This included problems sleeping, as well as nightmares, in addition to some difficulty in social functioning. In the opinion of the examiner, the veteran most closely matched symptomatology consistent with occupational and social impairment productive of a reduced reliability and productivity due to such symptoms as "lacked" affect, circumstantial or circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex plans, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in maintaining or establishing effective work and social relationships. It was the examiner's impression that the veteran had a disturbance of motivation and mood, as well as some difficulty in establishing and maintaining effective work and social relationships. Private outpatient treatment records covering the period from May to July 1999 show treatment during that time for the veteran's various back-related complaints. Analysis As concerns the veteran's claims for increased ratings, the Board notes that disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth on the rating schedule. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. Part 4 (1998). In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (1998). However, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Though a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that, effective November 7, 1996, the schedular criteria for the evaluation of service-connected mental disorders underwent complete revision. Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant must apply unless Congress or the Secretary provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). As there is no indication that the Secretary has precluded application of either the "old" or "amended" version of the pertinent regulations, due process considerations dictate that the veteran's claim for an increased evaluation for service-connected post-traumatic stress disorder be evaluated under the pertinent regulations effective both before and after the November 7, 1996 changes to the rating schedule. Barnard v. Brown, 4 Vet. App. 384 (1995). In that regard, at the time of a recent VA psychiatric examination in August 1996, the veteran complained of difficulty sleeping and stated that, on those occasions when he would go out, he was "constantly on guard," with the expectation that some harm might come to him. The Global Assessment of Functioning score assigned at that time was 65. On more recent VA psychiatric examination in March 1999, the veteran complained of dreams about Vietnam, and once again stated that he did not sleep well. He additionally noted that he "felt badly about himself," and that his energy level and concentration were "somewhat down." Following examination, the veteran was assigned a Global Assessment of Functioning score of 55, consistent with moderate symptomatology. Specifically, the veteran exhibited problems sleeping, as well as nightmares, and difficulties in social functioning. In the opinion of the examiner, the veteran suffered from occupational and social impairment productive of reduced reliability and productivity. It was further his impression that the veteran exhibited a disturbance of motivation and mood, as well as some difficulty in establishing and maintaining effective work and social relationships. The Board observes that, pursuant to those laws and regulations in effect prior to November 7, 1996, a 30 percent evaluation for service-connected post-traumatic stress disorder is warranted where there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and when psychoneurotic symptoms result in such reductions in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent evaluation, under those same laws and regulations, requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired, and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. 38 C.F.R. Part 4, Code 9411 (effective from February 3, 1988 to November 6, 1996). Under the current schedular criteria in effect for the evaluation of service-connected psychiatric disorders, a 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events). A 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. Part 4, Code 9411 (effective November 7, 1996). Based on the aforementioned, it is clear that the veteran experiences considerable social and occupational (industrial) impairment as a result of his service-connected post- traumatic stress disorder. In that regard, as of the time of the aforementioned VA psychiatric examination in March 1999, the veteran was described as exhibiting "moderate" symptomatology, characterized by problems sleeping, nightmares, and difficulty in social functioning. It was the opinion of the examiner that the veteran suffered from a disturbance of motivation and mood, as well as some difficulty in establishing and maintaining effective work and social relationships. Further noted was that the veteran's occupational and social impairment was productive of reduced reliability and productivity, due to such symptoms as a flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, etc. Based on the aforementioned, the Board is of the opinion that under both the "old" and "new" criteria for the evaluation of mental disability, the veteran's post-traumatic stress disorder is productive of symptomatology consistent with a 50 percent evaluation. This is particularly the case given the most recent clinical findings, and a current Global Assessment of Functioning Score of 55. Accordingly, an increased (50%) evaluation is warranted. Turning to the issue of a compensable evaluation for the veteran's service-connected residuals of fracture of the coccyx, the Board notes that, on VA orthopedic examination in August 1993, there was present only a minimal tenderness to palpation of the veteran's coccyx. In the opinion of the examiner, the veteran's low back condition was "quite static and only minimal." While on more recent VA orthopedic examination in March 1999, there was some slight angulation of the coccyx at the sacrococcygeal junction, there was no tenderness along the coccygeal or sacral region, and no radiographic evidence of obvious fracture. In the opinion of the examiner, the veteran's service-connected coccygeal fracture was "asymptomatic," with no evidence of disability or prolonged symptomatology. The Board observes that, in order to warrant an increased evaluation for the veteran's service-connected residuals of coccygeal fracture, there would, of necessity, need to be demonstrated some limitation of motion of the lumbar segment of the spine, muscle spasm, or demonstrable deformity of a vertebral body. See 38 C.F.R. Part 4, Codes 5285, 5292, 5295 (1998). Absent such findings, the noncompensable evaluation currently in effect is appropriate, and an increased rating is not warranted. In addition to the above, the veteran in this case seeks entitlement to a total disability rating based upon individual unemployability. In essence, it is argued that the veteran's various service-connected disabilities, when taken in conjunction with his education and occupational experience, are sufficient to preclude his participation in all forms of substantially gainful employment. In that regard, total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1998). In the present case, during the course of a VA Application for Increased Compensation Based on Unemployability, the veteran indicated that he had completed four years of college. Reportedly, the veteran had occupational experience as an air conditioning and TV repairman, a truckdriver, a computer analyst, and a machinist, and last worked in 1979. The veteran's current service-connected disabilities consist of post-traumatic stress disorder, assigned a 50 percent evaluation; and the residuals of fracture of the coccyx, tinnitus, and bilateral defective hearing, each assigned a noncompensable evaluation. The combined disability evaluation for the veteran's various service-connected disabilities is 50 percent. In the present case, a review of the record discloses that the veteran suffers from significant, and rather numerous, nonservice-connected disabilities. Indeed, at the time of a recent VA psychiatric examination in March 1999, the veteran conceded that he had stopped working in 1979 due to "orthopedic problems," specifically, problems with his back and legs. As noted above, the veteran has on two separate occasions been denied service connection for degenerative disc disease of the 5th lumbar vertebra and 1st sacral segment. Moreover, pertinent evidence is to the effect that, on two occasions, the veteran suffered a cerebrovascular accident resulting in rather considerable disability. The Board concedes that, based primarily on the veteran's service-connected post-traumatic stress disorder, he experiences considerable occupational (that is, industrial) and social impairment, resulting in reduced reliability and productivity. However, the remainder of the veteran's service-connected disabilities are noncompensably disabling. Based upon a review of the entire evidence of record, the Board is compelled to conclude that the veteran's combined service-connected disabilities, when taken in conjunction with his education and occupational experience, are insufficient to preclude his participation in all forms of substantially gainful employment. The veteran's service- connected disabilities do not meet the criteria for a total rating under 38 C.F.R. § 4.16 (a), and referral to the Director, Compensation and Pension Service, for extra- schedular consideration under 38 C.F.R. § 4.16 (b) is not in order because unemployability is not due to service-connected disability. The veteran has requested an additional VA examination prior to a final determination on the issue of an increased rating for the residuals of fracture of the coccyx. However, such an examination would serve no useful purpose. In point of fact, recent (1993 and 1999) VA examinations have shown only minimal, if any, symptomatology attributable to the veteran's coccyx. Under such circumstances, further examination is not warranted. ORDER An increased (50%) evaluation for service-connected post- traumatic stress disorder is granted, subject to those regulations governing the award of monetary benefits. A compensable evaluation for the service-connected residuals of fracture of the coccyx is denied. A total disability rating based upon individual unemployability due to service-connected disability is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals