Citation Nr: 0002845 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-30 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for a bilateral foot disorder. 3. Entitlement to a rating in excess of 30 percent for service connected post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from February 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. That rating decision granted service connection for post traumatic stress disorder (PTSD) and assigned a 10 percent rating, effective in September 1996. Subsequently a July 1998 Hearing Officer Decision assigned a 30 percent disability rating for the veteran's service connected PTSD effective in September 1996. An August 1997 RO rating decision denied the veteran's attempt to reopen his claim for service connection for a bilateral foot disorder. The Board notes that it has recharacterized the issue of entitlement to a rating in excess of 30 percent for the veteran's service connected PTSD disability in order to comply with the recent opinion by the United States Court of Appeals for Veterans Affairs (Court), in Fenderson v. West, 12 Vet. App. 119 (1999). In that case, the Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case (SOC) concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson. 12 Vet. App. 132 (1999), emphasis in the original. The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for issuance of a SOC. Id. As in Fenderson, the RO in this case has also identified the issue on appeal as a claim for an increased disability rating for the appellant's service-connected post, rather than as a disagreement with the original rating award for this disability. However, the RO issued a SOC providing the appellant with the appropriate applicable law and regulations and an adequate discussion of the basis for the RO's assignment of the initial disability evaluation for these conditions. In addition, the appellant's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned. See Bernard v. Brown, 4 Vet. App. 384 (1993). At the August 1999 hearing before the undersigned Member of the Board, the veteran raised the issue of clear and unmistakable error (CUE) in the January 1969 rating decision which denied service connection for a foot disorder. This issue has not been adjudicated by the RO. The issue has not been developed for appellate consideration and is not properly before the Board at this time. The issue is referred to the RO for action deemed appropriate. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The RO denied the veteran's attempt to reopen his claim for service connection for a bilateral foot disorder in May 1977. The veteran was notified of this decision in May 1977 but did not file an appeal 3. Competent medical evidence establishing a current bilateral foot disability and a relationship between the veteran's current foot disability and the veteran's active military service has been received since the May 1977 RO decision. 4. The veteran's service medical records reveal a diagnosis of and treatment for bilateral pes planus. 5. Medical records subsequent to service reveal continuing treatment for bilateral foot disorders. 6. An August 1999 medical opinion specifically relates the veteran's current bilateral foot disorders to his military service. 7. The veteran's service-connected post traumatic stress disorder is manifested by panic attacks, anxiety, irritability, nightmares and moderate difficulties in occupational functioning. 8. The service-connected PTSD does not result in more than considerable disability. CONCLUSIONS OF LAW 1. The May 1977 decision of the RO denying the reopening of the veteran's claim for service connection for a bilateral foot disorder is final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1999). 2. Evidence received since the May 1977 RO decision denying the reopening of the veteran's claim for service connection for a bilateral foot disorder is new and material, and the veteran's claim for service connection for a bilateral foot disorder is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. A bilateral foot disorder was incurred in active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 4. The criteria for a 50 percent rating, and not in excess thereof, for post traumatic stress disorder, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.124a, 4.132, Diagnostic Code 9411 (1996), amended by 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bilateral Foot Disorder A. Reopened Claim Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 5108 (West 1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App. 522, 524 (1996). When considering whether new and material evidence has been presented or secured to reopen a claim, the law provides, If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). To determine whether new and material evidence has been presented or secured to reopen a claim, a two-step analysis must be conducted. Evans, at 283; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). "First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material when 'the credibility of the [new] evidence' is presumed. . . . Second, if the evidence is new and material," the claim must be reopened and the former disposition reviewed based on all the evidence of record to determine the outcome of the claim on the merits. Evans, at 283 (citations omitted); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). VA regulations specifically provide that: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1999). The first question in determining whether the evidence is new and material is whether the newly presented evidence is actually "new" in the sense that it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of other evidence of record. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Struck v. Brown, 9 Vet. App. 145, 151 (1996). The second question is whether the evidence is "probative" of the issue at hand. Evans, 9 Vet. App. at 283. Evidence is "probative" when it "tend[s] to prove, or actually prov[es] an issue." See Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing BLACK'S LAW DICTIONARY 1203 (6TH ED. 1990). Determining what the "issue at hand" in a case is depends on the specified basis or bases for the last disallowance of the claim. Evans, 9 Vet. App. at 284. If such evidence is "so significant that it must be considered in order to fairly decide the merits of the claim," then the claim must be reopened. Hodge v. West, 155 F.3d 1356 (1998); 38 C.F.R. § 3.156(a) (1999). When determining whether the veteran has submitted new and material evidence to reopen the claim, consideration must be given to all of the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996), Glynn v. Brown, 6 Vet. App. 523 (1994). If the newly presented evidence is not "new," the claim to reopen fails on that basis and no further analysis of the evidence is required. Similarly, if "new" evidence is not "material" in the sense that it is not relevant to and probative of the "issue at hand," the claim to reopen fails on that basis and the inquiry ends. See Evans, at 286 (holding that "new" evidence was not relevant to and probative of a nexus between the claimed psychiatric disorder and an inservice injury or disease which was the "issue at hand" in the case, and therefore the "new" evidence was not "material" evidence and the inquiry ended, notwithstanding "old" evidence in the record pertaining to a nexus between the veteran's psychiatric disorder and his military service). Determining what the "issue at hand" in a case is depends on the evidence that was before the RO when it last denied the claim on the merits and the reasons for its denial. In this case, the RO denied the veteran's attempt to reopen his claim for service connection for a bilateral foot disorder in a May 1977 rating decision and notified the veteran of the decision that same month. The veteran did not appeal the RO decision and it became final. 38 U.S.C.A. § 7105(c) (West 1991). The "issue at hand" in this case is whether a bilateral foot disorder was incurred during the veteran's active military service. In order for the veteran's claim to be reopened, evidence must have been presented, or secured, since the May 1977 RO decision on the merits which is probative of this issue. The evidence of record at the time of the May 1977 RO rating decision which was relevant to the veteran's claim for service connection for a bilateral foot disorder was: the veteran's service medical records; a November 1968 VA examination report; and private medical records dated in 1975. The veteran's service medical records revealed that he had complaints of foot pain during active service. A podiatry consultation contained a diagnosis of bilateral pes planus (flat feet). However, the veteran's January 1968 separation examination report indicated that the veteran's feet were normal, with no abnormalities noted by the examining physician. The November 1968 VA examination stated that there was "no abnormality or disability of the feet." Private medical reports dated in October and November 1975 revealed that the veteran was diagnosed with intermittently symptomatic bilateral pes planus. However, these medical reports did not relate the veteran's pes planus to his military service. The evidence submitted since the May 1977 RO decision that refers to the veteran's bilateral foot disorder includes a large number of private medical records, the most important of which is an August 1999 letter from a private podiatrist. This letter states that the podiatrist reviewed the veteran's medical history, including copies of his service medical records and medical records subsequent to service. The diagnosis was of bilateral chronic plantar fasciitis and bilateral pes planus. The podiatrist's medical opinion was that the veteran's current foot disorder was "as likely as not related to events in the service." The Board concludes that this evidence is new because it was not before the RO when it denied the veteran's attempt to reopen his claim service connection for service connection for a bilateral foot disorder in May 1977. This evidence is also "material" because it is probative of the issue at hand, namely whether the veteran incurred a bilateral foot disorder during active service. Based on the applicable law, regulations and court decisions, the additional evidence received since the May 1977 RO decision is new and material and provides the required evidentiary basis to reopen the veteran's claim. The veteran's claim for service connection for a bilateral foot disorder is reopened. See Hodge, 155 F.3d 1356; 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156 (1999). B. Service Connection 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 and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In the present case the veteran claims that he incurred a bilateral foot disorder during service. As noted above, the veteran's service medical records revealed that he had complaints of foot pain during active service. A podiatry consultation contained a diagnosis of bilateral pes planus (flat feet). However, the veteran's January 1968 separation examination report indicated that the veteran's feet were normal, with no abnormalities noted by the examining physician. A VA examination of the veteran was conducted in November 1968 which was within a year of the veteran's separation from service. This examination report stated that there was "no abnormality or disability of the feet." The veteran has submitted a large amount of private medical evidence which shows diagnosis of, and treatment for, a bilateral foot disorder. These records date from approximately 1975 until the present. In August 1998 a VA examination of the veteran was conducted. The diagnosis was bilateral pes planus. Again, as noted above, the veteran submitted an August 1999 letter from a private podiatrist. This letter states that the podiatrist reviewed the veteran's medical history, including copies of his service medical records and medical records subsequent to service. The diagnosis was of bilateral chronic plantar fasciitis and bilateral pes planus. The podiatrist's medical opinion was that the veteran's current foot disorder was "as likely as not related to events in the service." The evidence supports the veteran's claim for service connection. There is evidence of a foot disorder during service, evidence of a current bilateral foot disorder, and competent medical evidence linking the two. The evidence supports a grant of service connection for a bilateral foot disorder. II. Post Traumatic Stress Disorder The veteran has presented a well grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). 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. § 3.321, and Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the psyche in self support of the individual. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). The VA Schedule for Rating Disabilities for evaluating the degree of impairment resulting from service-connected psychiatric disorders was changed during the course of the veteran's appeal. Compare 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), with 61 Fed. Reg. 52695-52702 (Oct. 8, 1996), codified at 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). In this case, the RO reviewed the veteran's claim under both criteria in June 1996, and provided the veteran with both sets of criteria in an August 1996 Statement of the Case. Moreover, the veteran and his representative were given an opportunity to respond to the new regulations. Accordingly, the Board concludes that the veteran will not be prejudiced by the Board's review of his claim on appeal because due process requirements have been met. VAOGCPREC 11-97 at 3-4 (Mar. 25, 1997); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Where regulations change during the course of an appeal, the Board must determine which set of regulations, the old or the new, is more favorable to the claimant and apply the one more favorable to the case. VAOGCPREC 11-97 at 1; Karnas, 1 Vet. App. at 312-13. This determination depends on the facts of the particular case and, therefore, is made on a case-by-case basis. VAOGCPREC 11-97 at 2. The veteran's service-connected PTSD disorder is currently rated as 30 percent disabling. Under the old criteria for rating service connected psychoneurotic disorders, a 10 percent rating was assigned for psychoneurotic disorders with less than the criteria for the 30 percent rating with emotional tension or other evidence of anxiety productive of mild social or industrial impairment. A 30 percent rating was assigned when there was "definite impairment in the ability to establish and maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment." A 50 percent rating was assigned where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. The next higher rating, a 70 percent disability rating, was warranted for severe impairment in the ability to establish and maintain effective or favorable relationships with people and psychoneurotic symptoms were of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. The highest rating, a 100 percent schedular evaluation, was warranted when all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; psychoneurotic symptoms existed which were totally incapacitating, 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; the veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Under the new criteria, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or when the symptoms are controlled by continuous medication. A 30 percent rating is warranted for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: 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; difficulty in establishing and maintaining effective work and social relationships. The next higher rating, a 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The highest, or 100 percent schedular evaluation, contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9421 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1998). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1998); Peyton v. Derwinski, 1 Vet. App. 282 (1991). An April 1997 report from a private psychologist is of record. The psychologist's diagnosis of the veteran's condition is PTSD. The report notes the presence of increased arousal, angry outbursts, and difficulties concentrating. The report also indicated the presence of panic attacks, agoraphobic symptoms, and impairment in occupational and social functioning. In April 1997 a VA psychiatric examination of the veteran was conducted. The veteran reported having nightmares. He also reported being irritable and scared by loud noises. He also indicted that he had anxiety and memory problems. Mental status examination revealed that the veteran was oriented, relevant, coherent, and cooperative. The veteran was anxious and agitated. No delusions or hallucinations were noted. The diagnosis was "post traumatic stress disorder, mild to moderate." An accompanying VA social survey noted that the veteran was employed despite difficulty in industrial functioning. A May 1997 letter from the veteran's private psychiatrist indicates that he was treating the veteran for his PTSD. The symptoms noted were: nightmares, distressing recollections, increased arousal, and agoraphobic panic attacks. A May 1997 letter from a social worker indicates that the veteran continued to work at regular employment. An August 1997 letter from the veteran's private psychologist indicates that he required continuing treatment for his PTSD. The veteran reported "positive functioning with family and nonstressful activities (home repair, computer avocation), positive self care, and good problem-solving and communication skills in some work and social situations, he has reported consistent impairment of emotional, social, and occupational functioning related to PTSD-related symptoms." The psychologist noted that the veteran's symptoms required treatment with medication. He also had panic attacks with agoraphobic and claustrophobic symptoms. Problems with work related travel and with medical procedures was also noted. The psychologist's assessment was that the veteran had a "rating of 55 on the Global Assessment of Functioning Scale (moderate symptoms impairing emotional stability, social, and occupational functioning)." The Board notes that a GAF of 51 to 60, which includes a GAF of 55, is defined as "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers)." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, 31 (4TH ed. rev., 1994). The veteran's treatment with medication is confirmed by psychiatric treatment records dating from 1992 which show that the veteran was treated with Xanax for his panic symptoms. In May 1998 another VA psychiatric examination of the veteran was conducted. the veteran was oriented, relevant, coherent, and cooperative. He reported having nightmares and flashback to traumatic in-service experiences. He denied having delusions or hallucinations, but did report having some suicidal ideation. He was anxious and agitated. His memory was intact, and his insight and judgment were fair. The diagnosis was mild to moderate PTSD. A GAF of 60 was assigned. The examining psychiatrist noted that the veteran "continues to have some suicidal ideation. He has some circumstantial sleep. He is working, but is having difficulty at work. He is not relating well to his family." In August 1999 the veteran and his wife presented sworn testimony at a hearing before the undersigned member of the Board. The veteran testified that he was employed as a supervisor in a municipal public works department. He testified that he had panic attacks approximately 3 to 4 times a week. He also reported having trouble traveling for work or attending meetings in confined spaces. He also reported having some disciplinary problems at work and provided some supporting documentation. On direct questioning he indicated that he had been employed by the city since 1974 and that he was promoted to supervisor in 1990. As noted above, where regulations change during the course of an appeal, the Board must determine which set of regulations, the old or the new, is more favorable to the claimant and apply the one more favorable to the case. VAOPGCPREC 11-97 at 1; Karnas, 1 Vet. App. at 312-13. This determination depends on the facts of the particular case and, therefore, is made on a case-by-case basis. VAOPGCPREC 11-97 at 2. The Board finds that, in this case, it is more favorable to rate the veteran's service connected PTSD under the new rating schedule. The evidence of record reveals that two different medical professionals have indicated that the veteran's GAF is somewhere between 51 and 60 which is defined as "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, 31 (4TH ed. rev., 1994). This definition most nearly approximates the criteria for a 50 percent disability rating under the current rating schedule: occupational and social impairment with reduced reliability and productivity due to such symptoms as: 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999)(emphasis added). Under the current rating schedule, the veteran does not warrant a rating in excess of 50 percent for his service connected PTSD. He does not show symptomatology of obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances which would warrant a rating of 70 percent under the current rating schedule. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Under the old criteria a 30 percent rating was assigned when there was "definite impairment in the ability to establish and maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent rating was assigned where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. The next higher rating, a 70 percent disability rating, was warranted for severe impairment in the ability to establish and maintain effective or favorable relationships with people and psychoneurotic symptoms were of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. The highest rating, a 100 percent schedular evaluation, was warranted when all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; psychoneurotic symptoms existed which were totally incapacitating, 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; the veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996) (emphasis added). The evidence of record does not show that the veteran meets the criteria for a rating in excess of 50 percent under the old rating criteria. We also note that, 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). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). The evidence of record reveals that the veteran has moderate PTSD. This clearly is greater than the 30 percent disability contemplated by definite impairment under the 30 percent rating. The veteran's service connected PTSD most nearly approximates the considerable impairment contemplated by the 50 percent rating under both the old and the new rating schedules. Although, the new rating schedule provides the closer match to the symptoms exhibited by the veteran. The evidence of record shows that the veteran has been employed at the same job since 1974, and that he was promoted to the position of supervisor in 1990. He is able to maintain employment. However, he does have difficulty at his job related to panic attacks and conflicts with co-workers related to his irritability. The veteran does not manifest incapacitating symptoms showing severe impairment contemplated by the ratings in excess of 50 percent under the old rating schedule. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The Board notes that there is no competent medical evidence of record which indicates that the veteran is unemployable due solely to his service connected PTSD. Moreover, the evidence of record clearly indicates that he is employed. As such, the Board finds that the evidence of record reveals that the veteran warrants an increased rating of 50 percent for his service connected PTSD. ORDER Service connection for a bilateral foot disorder is granted. An initial disability rating of 50 percent, and not in excess thereof, is granted for the veteran's service connected post traumatic stress disorder, subject to the law and regulations governing the payment of monetary awards. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals