BVA9502917 DOCKET NO. 93-07 148 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and a friend. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 to December 1969. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Indianapolis, Indiana, Regional Office (hereinafter RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that symptoms of post-traumatic stress disorder, such as flashbacks, nightmares and problems relating to other people, are so severe that entitlement to an increased rating for post-traumatic stress disorder is warranted. It has also been contended that the veteran's alcoholism is the result of the service connected post-traumatic stress disorder. 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 veteran's claim. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. No more than mild social and industrial impairment associated with the veteran's service-connected post-traumatic stress disorder is shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for post- traumatic stress disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.132, Diagnostic Code (DC) 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented sufficient evidence to conclude that his claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as the available relevant information has been obtained and there is enough evidence of record to make an equitable decision in the veteran's appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Post-traumatic stress disorder resulting in emotional tension or other evidence of anxiety productive of mild social and industrial impairment warrants a 10 percent disability rating. Psychoneurotic symptoms caused by post-traumatic stress disorder resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment and definite impairment in the ability to establish or maintain effective and wholesome relationships warrants a 30 percent disability rating. 38 C.F.R. § 4.132, DC 9411. 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, 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). In a precedent opinion dated November 9, 1993, the VA General Counsel 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." VA O.G.C. Prec. Op. No. 9- 93 (Nov, 9, 1993). The board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). With these considerations in mind, the Board will address the merits of the veteran's claim. Post-traumatic stress disorder was first diagnosed by a VA psychiatrist in May 1991, and service connection for this disability was established by a January 1992 rating decision. A 10 percent rating was assigned. A notice of disagreement with the 10 percent rating was filed in March 1992 and the veteran was afforded a VA examination in June 1992 in order to determine the severity of the post-traumatic stress disorder. However, this examination showed the veteran's principal problem to be major severe depression rather than post-traumatic stress disorder, and post-traumatic stress disorder was not included in the diagnostic impression. In order to reconcile the various psychiatric diagnoses, the veteran's representative requested at the time of an August 1992 hearing at the RO that the veteran be admitted to a VA medical facility to be examined by a board of VA psychiatrists. This was accomplished in November 1992. The reports from this treatment referred to the following relevant history. A VA examination conducted in March 1987 showed the veteran stating that he suffered from depression after he returned from Vietnam. The treatment had included Elavil. This examination also showed the veteran giving a history of alcohol abuse during service. Reference was also made by the psychiatric board to a cerebral vascular accident that occurred in 1988 (a June 1988 VA outpatient treatment record indicates the veteran was treated for an intracerebral hemorrhage at a Methodist hospital in March 1988) and numerous physical examinations conducted to determine the nature of any sequelae from this event. The board of psychiatrists noted that this history included the possibility of the veteran exaggerating some of his symptoms (See, e.g., September 1988 VA outpatient report.) The psychiatric board also referred to the aforementioned May 1991 diagnosis of post-traumatic stress disorder as well as one made after an October 1991 VA examination. Symptoms of post- traumatic stress disorder noted on a report from this examination included the veteran reporting having dreams about people that wanted to kill him and being reminded of his experiences in Vietnam whenever he watched television. He also admitted that he thought about killing himself and had played Russian Roulette. An exaggerated startle response was also reported. The diagnosis reached by the psychiatrist who examined the veteran in October 1991 was post-traumatic stress disorder of moderate severity and residuals of a cerebral vascular accident. The November 1992 psychiatric evaluation included a social work assessment. The social worker who examined the veteran indicated that he appeared to have some components of post-traumatic stress disorder. The veteran reported that he began drinking when he was 18 and drank heavily in Vietnam during "down times." Insight and judgment were thought to be slightly impaired and further treatment in a mental health clinic was recommended. November 1992 psychological testing results were interpreted as showing that the veteran was "either extremely decompensated or someone who is very intent on making himself look as bad as possible on paper. The clinical interviews performed by a psychologist, social worker, and psychiatrist do not show decompensation, nor do they show an individual that looks like his test results indicate." It was also indicated upon psychiatric examination that the veteran was "unconvincing when he make an attempt to separate the harmful effects his drinking had on his personal relationships and functioning at work from his experiences at [sic] Vietnam," and "[t]here was an overall sense that he was presenting symptoms in such a way as to obtain the diagnostic label which he desires." The examiners concluded with "absolute certainty" that the veteran suffered from alcoholism, which the veteran stated had been in remission since 1988. It was also indicated that a diagnosis of depression "might" be warranted, given the veteran's unhappiness with his health and living situation, but that there was so much exaggeration emanating from the veteran that the legitimacy of such a diagnosis was difficult to ascertain. The most likely diagnosis was personality disorder, not otherwise specified, with histrionic and paranoid features. As for post- traumatic stress disorder, the examiners concluded that while the veteran made "all the right statements and indicat[ed] all the right experiences that would qualify" for the diagnosis, the possibility of the veteran malingering in order to obtain an increased disability rating could not be ruled out given the "sudden onset" of the diagnosis of post-traumatic stress disorder, the history of long term alcohol abuse, and the tendency of the veteran to exaggerate his symptomatology. As a result, the examiners could not "disprove" or "establish" the existence of post-traumatic stress disorder. It was the opinion of the board of psychiatrists that the veteran's depressive symptoms were primarily related to his physical disabilities and living situation related to his recent stroke and chronic alcohol abuse, and that these symptoms did not appear to be related to his Vietnam experiences. After reviewing the findings from the examination of the veteran conducted in November 1992 under the direction of the VA board of psychiatrists in conjunction with the relevant clinical history, the Board concludes that the "negative" evidence outweighs the "positive" evidence of record. The Board makes this determination because the "positive" evidence is limited to the uncorroborated testimony and written statements of the veteran describing purported symptoms of post-traumatic stress disorder and their severity, while the principal "negative" evidence is contained in the objective findings of the VA board of psychiatrists. That panel essentially concluded that the veteran's post-traumatic stress disorder, which was a diagnosis of questionable validity to them, was not the cause of the veteran's psychiatric difficulties. There is also a question as to the veteran's credibility, given the repeated references in the report from the November 1992 examinations to his exaggeration of symptoms. There being no "positive" objective clinical evidence to refute these findings, the Board cannot conclude that the veteran's uncorroborated contentions are of sufficient probative value to equate with that of the objective "negative" evidence of record. In this regard, while the veteran is competent to testify as to psychiatric symptoms, the Board concludes that opinions from psychiatrists as to the etiology of those symptoms are of greater probative value. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Therefore, the Board concludes that sufficient evidence of symptoms which can be attributed to post-traumatic stress disorder that would warrant the assignment of an increased rating for this disability under the provisions of 38 C.F.R. § 4.132, DC 9411 has not been shown. As to the contention that the veteran's alcoholism was caused by his post-traumatic stress disorder, the weight of the evidence indicates that the veteran began drinking at a young age and has a history of alcohol abuse that pre-dates the first diagnosis of post-traumatic stress disorder by many years (See e.g., history given by the veteran at the March 1987 VA examination and to the VA social worker in November 1992). The Board notes also that similar to the analysis of above, lay assertions as to the etiology of the veteran's alcoholism are of minimal probative value. Espiritu, 2 Vet.App. 492, 495 (1992). The board of psychiatrists specifically did not relate any alcohol-induced symptoms to service, and, in any event, the veteran reportedly stopped drinking in 1988. He does not currently have problems with sobriety. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected post-traumatic stress disorder is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an increased rating for post-traumatic stress disorder is denied. HOLLY E. MOEHLMANN 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.