Citation Nr: 0000323 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 96-31 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether the 40 percent evaluation for low back strain with hamstring spasms superimposed on congenital scoliosis with severe limitation of motion, was properly reduced to 20 percent, effective from June, 1, 1998. 2. Entitlement to an evaluation in excess of 40 percent for low back strain with hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion, from March 2, 1995. 3. Entitlement to an evaluation in excess of 30 percent for dysthymic disorder with a depressed mood. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from February 1981 to February 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The veteran appealed an RO decision in March 1996, which denied the veteran's claim (received on March 2, 1995) for an evaluation in excess of 40 percent for low back strain with hamstring spasms superimposed on congenital scoliosis, with severe limitation of motion, and an evaluation in excess of 30 percent for dysthymic disorder with a depressed mood. In March 1998, the RO reduced the evaluation for low back strain with hamstring spasms superimposed on congenital scoliosis with severe limitation of motion, from 40 to 20 percent. The veteran also appealed that decision to the BVA. In June 1997, the veteran was informed that a Chapter 32 Education Benefits check in the amount of $ 2, 079 had been paid to him. The veteran has repeatedly denied receiving this check. This issue is referred to the RO for appropriate action. At his June 1999 personal hearing before the undersigned Board Member at the RO, the veteran submitted additional evidence and waived consideration of such evidence by the RO. The issues of entitlement to a total compensation rating based on individual unemployability and an extraschedular rating for the veteran's service-connected low back disability, under the provisions of 38 C.F.R. § 3.321(b)(1) (1999) will be addressed in the Remand part of this decision. FINDINGS OF FACT 1. The provisions of 38 C.F.R. § 3.344 were not considered and applied at the time of the March 1998 RO rating action reducing the disability evaluation for the veteran's service- connected back disability from 40 percent to 20 percent; that decision is, therefore, void ab initio as not in accordance with the law. 2. The veteran's low back strain with hamstring spasms superimposed upon congenital scoliosis has been manifested by severe limitation of motion of the lumbar spine since March 1995. 3. The disability picture presented by dysthymic disorder with a depressed mood more closely approximates definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with definite industrial impairment, than it approximates considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and considerable industrial impairment. Furthermore, dysthymic disorder with a depressed mood is manifested by no more than occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The reduction of the evaluation for low back strain with hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion, from 40 to 20 percent, was void ab initio, and restoration of the 40 percent evaluation is warranted for the period from June 1, 1998. 38 C.F.R. § 3.344 (1999): Kitchens v. Brown, 7 Vet. App. 320 (1995). 2. The schedular criteria for rating in excess of 40 percent for low back strain with hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion, for the period from March 2, 1995, have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295 (1999); DeLuca v. Brown, 8 Vet. App. 202, 205-206. 3. The schedular criteria for an evaluation in excess of 30 percent for dysthymic disorder with a depressed mood have not been met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §4.132 Diagnostic Code 9405 (1996); 38 C.F.R. § 4.130 Diagnostic Code 9405 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter the Board finds that the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran is seeking an increased rating (as opposed to entitlement to service connection), an assertion of an increase in severity is sufficient to render the increased rating claim well-grounded. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). I. Low Back Disability Service connection for low back strain with hamstring spasms superimposed upon congenital scoliosis was granted by the RO in September 1985, and a 20 percent evaluation was assigned, effective February 1985. The RO determined that the veteran's back disability was aggravated by service. This decision was based on service medical records that noted complaints of low back pain, and a VA examination report that noted paravertebral and hamstring spasm, localized lumbosacral tenderness, limitation of motion of the lumbar spine, with X-ray evidence of minimal scoliosis. In October 1986, the RO reduced the rating to 10 percent, effective January 1987. In a June 1988 rating decision, the RO restored the 20 percent evaluation, effective from the date of service connection. At his February 1988 RO hearing, the veteran testified that he had pain in the lower back, described by a VA physician present at the hearing as being approximately between L1 and L2, and all the way across the paraspinal region. He also testified that he had pain that would radiate down his left leg and halfway up his back. The veteran stated that his back pain had increased over the past year, with more frequent back spasms, but that his radiating pain had remained unchanged. He described the radiating pain as a "tingling pain." The veteran demonstrated that he could not flex forward at all without experiencing pain. The veteran further testified in February 1988 that, because of his back pain, he was no longer able to participate in sports, and that he had "lost some pretty good jobs over not being able to work for over a week." He stated that his back caused him to be bedridden "at least four times," over a six month period, each occasion lasting from two days to two weeks. He said that these episodes would come from making a wrong sudden move. The VA physician commented that during the hearing, the veteran could be observed to be uncomfortable and in pain. The veteran's mother, who testified that she had been a nurse for the past 17 years, said that the veteran was in constant pain, that he was occasionally bedridden due to muscle spasms, and that he was unable to work or to perform athletic activities. An April 1988 statement from a private physician reported that the veteran had been suffering "increasing severity of back pain with radiation down both legs. He requires muscle relaxants and analgesics on a chronic basis." An April 1988 VA examination report noted that the veteran complained that he had had to quit a number of jobs due to his back pain. He stated that he was unable to walk for a mile before experiencing back pain, and that he could only climb two to three flights of stairs before experiencing back cramps. He was described as standing with a "shifting back, but it is splinted." Flexion was to 30 degrees, extension was to 5 degrees. The examiner also reported that the veteran "bends some 20 degrees with segmentation and rotates about the same." Knee and ankle jerks were active, and he described a loss of feeling in the sole of the left foot. The examiner reported that hip-knee flexion caused back pain, straight leg raise testing was limited to 40 degrees on both sides, and "Ober's . . . and Ely's [testing both] . . .referred to the back." There was tenderness in the lumbar region, without radiating pain or sciatic notch tenderness. The examiner reported further that "stool kneeling test was carried out somewhat reluctantly but back spasm is less with stool kneeling and with prone position." Radiology revealed mild reverse spondylolisthesis of L5 over S1 without any spondylolysis. The height of the intervertebral disk spaces and vertebral bodies was noted to be unremarkable. There was mild scoliosis of lumbar spine with convexity to the right. In October 1989, based on the results of an August 1989 VA examination, the RO increased the evaluation for the veteran's back disorder to 40 percent, effective June 16, 1989, and recharacterized the disability as low back strain with hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion. The VA examination report noted that the veteran complained that his back disability prevented him from working, and that his back spasms were getting more frequent and were lasting longer. He was wearing a back support. The examiner indicated that the physical examination was not fully satisfactory as the veteran was extremely tense, saying that his back caused so much distress that he wanted to "end it all." His back was described as flat and rigid. The examiner commented that the veteran's back "flexes to 20 [degrees], no extension, bends 10, and rotates only five." The examiner stated that there was "no real sensory or motor pattern [deficit] but tests are resisted." Ober's and Ely's tests were referred to the back, and there was marked tenderness at the lumbosacral junction without radiating pain or sciatic notch tenderness. The impression was chronic low back pain associated with developmental variation. The claims folder contains no additional medical evidence until January 1995. VA treatment records from that date noted that the veteran complained of lower back pain since an automobile accident in June 1994. An MRI of the lumbar spine revealed a mild degree of generalized protrusion at the L4-L5 level, with evidence of mild degenerative changes in the disk, and mild hypertrophic spurring of L5, with no evidence of encroachment on the intervertebral foramina. A March 1995 VA examination report noted that the veteran complained of chronic low back pain worsened by bending, lifting, prolonged sitting, standing or walking. He said that his back disability had prevented him from working for the past year. He described pain radiating into the left leg to the foot on an intermittent basis, with intermittent episodes of numbness and tingling into the left leg. He wore a back brace and was observed to move with a slow limp and to stand erect. There was no spasm noted and the veteran had mild generalized tenderness to palpation of the lumbar region. Flexion was to 40 degrees and extension was to 25 degrees. Toe walking was "fair," but the veteran was unable to heel walk due to pain. He was able to squat halfway down and rise again, and reflexes and sensation were intact in the lower extremities. VA treatment records from June 1995 noted that the veteran complained of severe back pain following an altercation with his roommate. The veteran demanded a more powerful narcotic to combat the pain. In July 1995 the veteran was involved in another automobile accident and was treated for complaints of chest and abdominal pain. The veteran was given a general physical examination and was noted to be tender to palpation along the lateral borders of the lower back. A November 1995 VA examination report noted that the veteran complained of back pain that prevented him from working for the past year or from walking for more than a half mile. He was noted to be stiff, slow and rigid in all his movements. The examiner commented that "he has hyperactive reflexes, no definite sensory or motor pattern that I can identify but all tests . . . appear to cause low back pain and spasm, even turning on the [examining] table is apparently very difficult." The impression was "low back strain and severe spasm without adequate explanation on this orthopedic examination." VA treatment records from October 1995 to November 1996 noted continuing treatment for back pain. In March 1996, the veteran was noted to be in acute distress, pacing, getting up from his chair and walking gingerly, moaning and sighing constantly. He complained of lumbosacral pain at L4-L5, with ascending and descending spasms, and radiation of pain to the left hip and foot, with numbness, aggravated by sitting. Flexion was to 5 degrees, lateral flexion was to 5 degrees bilaterally, and rotation was to less than 5 degrees bilaterally. Straight leg raise testing was positive at 5 degrees. The assessment was degenerative joint disease of the lumbosacral spine, with acute pain and radiation. In April 1996, X-rays revealed that the vertebral bodies were intact and in good alignment. Straightening of the lumbar spine was suggestive of muscle spasm. Disc spaces were well maintained, and the sacroiliac joints were unremarkable. The veteran complained that his back pain was so severe, he contemplated taking his own life. The veteran was enrolled in the VA Pain Management Clinic in July 1996. Records from the VA trauma recovery program that same month indicated that the veteran had been able to achieve the goal of walking for up to one mile a day. In August 1996, he reported to the VA medical center (VAMC) demanding pain medication so that he would not drink alcohol. The impression noted was poly-sybstance abuse (dependence) and chronic back pain. Private medical treatment records from Methodist Medical Clinic, from June to November 1996, noted that the veteran complained of sharp back pain that severely impacted his life, preventing him from working and having sexual relations. He reported that virtually any movement caused pain, and that the only relief had come from a recent epidural injection. He was observed to have a normal stride, and he could walk on his heels and toes well. He had "obvious paraspinous musculature tenderness bilaterally, . . . [with] some decreased range of motion with flexion," but "good range of motion with extension and side bending." Straight leg raise testing was positive bilaterally at 15 degrees, there was no sensory or motor loss in the lower extremities bilaterally, deep tendon reflexes were +2/4 bilaterally at both the Achilles and the patella. The impression noted was low back pain with radiculopathy, and significant muscle spasm in the low back. The veteran was treated with a series of epidural injections, apparently with significant initial improvement in his back pain, and by July 1996, his pain was described as mild. After his first injection, he returned to the hospital and his behavior was described by his treating physician as "drug seeking." He returned again after his series of injections was completed. His physician reported that the injections had resulted in temporary progress each time, but that each time, the veteran would suffer a relapse "after doing too much physically even though he was warned to be careful not to." The physician again stated that "I am very suspicious of him for exhibiting drug seeking behavior." The veteran was described as appearing to be in extreme distress, "and is hardly able to walk at times. However, at other times he seems to be able to walk better. It appears that when he is . . . aware of being examined, his symptoms are exaggerated." The veteran was observed to be walking bent-over, his range of motion was "extremely limited . . . in all directions," due to pain, deep tendon reflexes were equal and brisk bilaterally, motor function "appears to be greatly decreased . . . secondary to pain only," straight leg raise testing "greatly exacerbate[d] his low back pain but [did] not bring on any radiating symptoms down the leg," and sensory examination was normal and equal bilaterally. There was "exquisite tenderness" over the sacroiliac joints to deep palpation, tenderness over the sacrum, and mild to moderate paraspinous muscle spasm in the low lumbar spine. In November 1996, his private physician wrote a letter summarizing the veteran's treatment, stating that he had been seen for "failed back syndrome with no evidence of ruptured disk or lesion." The physician stated that the veteran "improved markedly," with treatment, to the extent that he was able to walk, and to take care of his basic and intermediate activities of daily living. At his October 1996 personal hearing before the RO, the veteran stated that he suffered from back pain that was at times so severe that he would be bedridden, sometimes for six weeks or more, sometimes less. He said the last time he had been bedridden for six weeks had been earlier that year. He described both a dull aching pain and a shooting pain, that frequently prevented him from sleeping at night. The pain would radiate to his left leg and sometimes up his back. He said that standing or sitting for any period of time would cause "tightening," and sharp, radiating, shooting pain, and that his back disability affected his sexual relations. He also said that he would get muscle spasms in his back two or three times a month, although the frequency and severity would fluctuate. He said that in the past year he had received epidurals from a private hospital that helped reduce the pain in his back and enabled him to get around. He also reported that he wore a back brace eight months out of the year, and that this helped his back. He testified that he used to abuse alcohol and marijuana in an effort to "self medicate," because the medications he received from VA did not help. He further testified that his last employment was two and a half years earlier, but that he was unable to keep the job because he had to spend time in bed for weeks at a time. The veteran's mother testified that she was a nurse and that the veteran's physicians were not prescribing the appropriate medication because they felt that the veteran was "just a little drughead." A February 1997 VA examination report noted that the veteran complained of recurrent episodes of localized low back pain, with, "on several occasions," episodes of numbness and an inability to move his entire left leg. The examiner noted that review of the claims folder indicated that the veteran had received a Magnetic Resonance Imaging (MRI) scan in 1994 and that this revealed "some evidence of degenerative disc disease." Current examination of the veteran revealed no scoliosis. Flexion was to 55 degrees, extension was to 20 degrees "with a jerking cogwheel movement," lateral flexion to 20 degrees bilaterally, also "with a cogwheel jerking movement." The examiner commented that these movements were "not usually seen in a patient with true backache because that would greatly aggravate the pain." Axial compression and simulated rotation were also noted to cause low back pain. The examiner again commented that "simulated rotation does not involve any movement of the back and should be painless." There was tenderness over the spinous process of L5 and the veteran complained of tightness in the hamstring muscles "at 45 degrees." The veteran did not complain of sciatic pain. Deep tendon reflexes were active and equal in the ankles and knees bilaterally, there was no motor weakness or sensory deficit in the lower extremities, and the veteran could walk on his heels and toes without any difficulty. The examiner noted that, when asked to squat, the veteran "would go down about 25 percent and state that it caused low back pain. In actuality, he was not moving his back at all and this should not cause low back pain." The report noted that three views of the spine revealed no evidence of fracture, dislocation or destructive lesion, and there was no evidence of osteophytes or narrowing of the discs. The examiner stated that the L5 vertebra was shifted posteriorly on S1 "about 2 mm," which the examiner opined was not of any clinical significance. There was no sclerosis of the posterior facets, and no evidence of a herniated pulposus with nerve root irritation. The impression noted was history of recurrent low back pain. The examiner commented that degenerative disc disease shown in an earlier MRI "may be the basis of his pain," but that "I cannot blame his current problems on the episode of pain he incurred in the military." In December 1997, the RO proposed reducing the evaluation for low back strain with hamstring spasms superimposed upon congenital scoliosis, with limited motion, from 40 to 20 percent. The veteran submitted correspondence dated in January 1998 from a private physician, Gary D. Holdiness, M.D. Dr. Holdiness stated that he had first seen the veteran in February 1998 [sic] and that the veteran's current complaints consisted of intermittent low back pain and intermittent numbness in the left leg. There was paravertebral tenderness with rigid spasm bilaterally, with diffuse tenderness over the sacroiliac and the supportive oblique muscles of the abdomen. There was "strongly positive allopethia and hyperesthesia bilaterally in the low back," deep tendon reflexes were 2 to 3+ symmetrically at the knees and 2+ at the ankles. He had positive antalgic posturing favoring the left side, and straight leg raise testing caused tightness in the back and leg, but no referred pain. Faber testing was noted to be strongly positive for low back pain. Dr. Holdiness' assessment was chronic low back pain, mixed etiology, combination of degenerative joint and disc disease, chronic low back instability and muscle spasticity. Dr. Holdiness further opined that the veteran was completely disabled due to his chronic low back pain, and that even completely sedentary work would be difficult because the veteran's back pain prevented him from sitting for prolonged periods of time. Additional treatment records from Dr. Holdiness' Hospital, dated either in August 1998 or March 1997, noted that a Computed Tomography (CT) scan of the lumbar spine revealed multilevel degenerative disc disease and spondylosis with neural foraminal impingement. Correspondence dated in February 1998, from John G. Downer, M.D., indicated that the veteran had been a long term patient of Dr. Downer's and that the veteran suffered from severe chronic pain that made him unable to work. At his June 1999 personal hearing before the undersigned Board Member, the veteran submitted statements from several friends and acquaintances who all attested to the integrity of the veteran and to the severity of his back disability. These statements confirmed that the veteran was limited in his daily activities, and was occasionally bedridden, and that such impairment affected his ability to find employment. The veteran testified that he felt that he was entitled to an evaluation in excess of 40 percent. He indicated that there had been a "personality conflict" between himself and the examiner who conducted the February 1997 VA examination, that the veteran had "made the doctor mad," and that, for this reason, the doctor's medical opinion "was totally unfavorable." The veteran testified that he would get muscle spasms three to four times per week, lasting from two days to two weeks. He said that when he had back spasms, he was unable to bend over at all, and that he would be "laid up" in bed for days, and sometimes a week or two. He indicated that since February 1998, his back condition had become worse, and that due to his back pain and associated depression, he had "lost two jobs already." He stated that he had begun working selling real estate "about a year and a half ago," but that he had currently been off work for the past three months, and that prior to being off work, he had missed a "considerable" amount of time from work due to his back pain. The veteran's mother testified that she was a nurse and that she had witnessed the veteran's spasms and witnessed him "laying on the floor. . . . he cannot do anything. . . . he doesn't have much of a life. He can't have a family, he can't support himself." A. Restoration of 40 percent Rating from June 1, 1998 38 C.F.R. § 3.344(c) (1999) provides that, if a rating has been in effect for 5 years or more, the provisions of 38 C.F.R. § 3.344(a) must be complied with in any rating reduction. The latter provision requires that there be material improvement in the disability before there is any rating reduction. See Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The 40 percent evaluation for the veteran's low back strain with hamstring spasms superimposed on congenital scoliosis, with severe limitation of motion, had been in effect since June 16, 1989, and reduction of the rating from 40 percent to 20 percent was effectuated ultimately on June 1, 1998. As such, the pertinent matter at issue is whether material improvement in the veteran's disability was demonstrated in order to warrant a reduction in such compensation benefits. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). VA regulations provide that, where reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared, setting forth all material facts and reasons. 38 C.F.R. § 3.105(e) (1999). The Board notes that this was done in the instant case. In December 1997, the RO proposed the reduction in the veteran's 40 percent disability evaluation for his back disability, and he was properly notified of the proposed action. Furthermore, the regulations provide that the veteran is to be notified of the contemplated action (reduction or discontinuance), given detailed reasons therefor, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e),(h) (1999). In the instant case, the Board finds that the RO furnished the veteran appropriate notice of the proposed rating reduction for his back disability in December 1997. Moreover, the veteran subsequently submitted statements indicating his disagreement with the proposed rating reduction, along with supporting evidence, all of which was considered by the RO. The veteran did not request a predetermination hearing, although he did subsequently request, and was granted, a personal hearing before a traveling Member of the Board. The proposed reduction was effectuated in a March 1998 rating decision, effective June 1, 1998. Therefore, the Board finds that the RO's reduction of the evaluation of the veteran's back disability was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Kitchens, supra; Brown, supra. The provisions above apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The Board has reviewed the record and finds that the reduction in rating from 40 percent to 20 percent was legally improper. There is nothing in the evidence of record to show that the RO considered the provisions of 38 C.F.R. § 3.344(a),(c) when it reduced the veteran's evaluation in March 1998. Leaving aside the question of whether the clinical evidence of record at the time of the RO's March 1998 rating decision clearly failed to indicate material improvement in the veteran's disability, including improvement under the ordinary conditions of life such as working or actively seeking work, the Board notes that the RO failed to address the question of material improvement. Failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992); see also Kitchens and Brown, supra. The Board parenthetically notes that the medical evidence does not clearly warrant the conclusion that sustained improvement in the veteran's back disability had been demonstrated at the time of the March 1998 rating decision that reduced the evaluation for low back strain with hamstring spasms superimposed upon congenital scoliosis, with limited motion. Correspondence from two separate private physicians, dated in January and February 1998, opined that the veteran was unable work due to his back disability, which Dr. Downer characterized as "severe." In any event, as the RO failed to apply 38 C.F.R. § 3.344 in its reduction of the veteran's disability evaluation from 40 percent to 20 percent, the Board finds that the March 1998 rating decision is void ab initio as not in accordance with the law, and thus the Board has no legal option but to restore the 40 percent schedular rating. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.344(a), (c). B. Rating in Excess of 40 Percent Disability evaluations are based on the comparison of clinical findings with the relevant schedular criteria. 38 U.S.C.A. § 1155. 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). The veteran's low back disorder has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5292, 5295. Under DC 5292, a 40 percent evaluation is the maximum contemplated evaluation and is warranted for severe limitation of motion of the lumbar spine, and a 20 percent evaluation is warranted for moderate limitation of motion. Under DC 5295, a 40 percent evaluation is the maximum contemplated evaluation and is warranted for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position. There is medical evidence of post-service back injuries and non-service-connected degenerative disc disease of the lumbar spine, which undoubtedly has contributed to the veteran's overall low back disability picture. The pertinent medical evidence of record is also conflicting as to the severity of the veteran's low back disability. Some of the medical findings are clearly consistent with severe disability, including severe limitation of motion of the lumbar spine, whereas other findings and opinions strongly suggest an element of secondary gain. In fact, one of the examiners cited inconsistent clinical findings in support of an opinion that essentially concluded that the veteran was exaggerating his low back symptoms. Nevertheless, there are ample findings indicative of severe disability without such commentary. The Board has considered the testimony from the veteran and his mother, who is a nurse, in concluding that the evidence is at least in equipoise as to whether there is severe disability attributable to the service-connected low back disability. However, the 40 percent rating that was in effect from June 15, 1989 to May 31, 1998, contemplates severe disability. That is, a 40 percent evaluation is the maximum evaluation allowed under DC 5292 or DC 5295. There is no medical evidence of ankylosis or complete immobility of the lumbar spine so as to support a rating of 50 percent under Code 5289. The Board has considered 38 C.F.R. §§ 4.40, 4.45 and Deluca v. Brown, 8 Vet. App. 202, 205-206 (1995), but there is no objective medical evidence to show or indicate that pain, weakness, or any other low back symptoms attributable to the service-connected disability at issue produces additional functional limitation to a degree (i.e., ankylosis) that would support a rating in excess of 40 percent under the applicable rating. As service connection is not in effect for intervertebral disc syndrome, DC 5293 is not for application. Accordingly, a rating in excess of 40 percent is not warranted for the veteran's service-connected low back disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the increased rating claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In conclusion, the Board restores the 40 percent evaluation for low back strain with hamstring spasms superimposed on congenital scoliosis, with severe limitation of motion, and denies the veteran's claim of entitlement to an evaluation in excess of 40 percent for that disability. II. Dysthymic Disorder Service connection for adjustment disorder with depressed mood was granted in October 1989, and a 30 percent evaluation was assigned, effective June 1989. This decision was based on VA examination reports from August 1989 that indicated that the veteran's psychiatric disability was due to his service-connected back disability. He was described as depressed, anxious and angry, and of having thoughts of suicide, but without any actual attempts or current plan. In March 1995, the RO recharacterized the disability as dysthymic disorder with depressed mood. The 30 percent evaluation has remained in effect. VA treatment records from September to October 1995 noted that the veteran was admitted to the chemical dependency treatment program with the diagnoses of alcohol dependence and marijuana abuse. Upon admission, he denied homicidal or suicidal ideation, or hallucinations. Upon discharge, his Global Assessment of Functioning (GAF) score was 75. A February 1996 VA psychiatric examination report noted that the veteran stated that he was angry because he was in constant pain and his physicians would not give him anything for the pain. He admitted to a remote history of homicidal and suicidal thoughts but denied any attempts and denied recent thoughts of either. He complained that his sleep was impaired by pain, and his appetite was erratic. He was noted to be living with a housemate, he was appropriately dressed and adequately groomed, he sat uncomfortably and appeared to be in severe pain as reflected by his affect and speech. He did not exhibit flight of ideas, loose associations, or delusions, and his mood and affect were irritable and depressed. He was oriented in three spheres, his memory, judgment and abstracting ability were good and his insight was fair. Records from the veteran's VA pain-treatment classes, from June to September 1996, indicated that while the veteran continued to complain of depression and anger due to his back pain, his mental status and his affect were within normal limits, and his depression was described as "mild." Furthermore, he indicated a desire to "move forward, accept his situation and get back into school so as to become financially stable once again." At his October 1996 personal hearing, the veteran indicated that he had recently been hospitalized at a VA facility for two weeks for his back disability and for associated depression. He stated that in the past he would drink and smoke marijuana to ease the back pain. He said that he has felt suicidal, and indicated that he has had problems relating to other people, he has few friends, and suffers from paranoia, lack of trust in others, depression, lack of self esteem, periodic confusion, a hair-trigger temper, and difficulty in concentrating. He indicated that this has made it difficult for him to work with others. The veteran's mother testified that the veteran had become so depressed because of his intractable back pain that he was at times suicidal. A February 1997 VA examination report noted that the veteran reported that he felt "Okay, I guess. . . . for the most part the pain has gotten better so my nerves have too. I wouldn't feel depressed so much if I were not in pain." He denied a history of hallucinations or of attempts to harm himself or others. He complained of sleep impairment due to "weird dreams," but his appetite was not impaired. He was appropriately dressed and adequately groomed, his speech was fluent without flight of ideas or looseness of associations, his mood and affect were mildly depressed, he expressed no delusions, he was oriented in three spheres, his memory and judgment were good, his abstracting ability was adequate, and his insight was fair. In June 1997, the RO granted a temporary total rating under 38 C.F.R. § 4.29 for the period from September to November 1995. The 30 percent evaluation was resumed thereafter. The veteran was hospitalized from January to February 1998, stating that he had been "slipping" and had begun drinking again. He denied homicidal or suicidal thoughts, but admitted that he had wanted to shoot someone at the Federal Building about his check earlier that week. He was unemployed and living with his parents. He was alert and oriented, his speech was clear and coherent without exhibiting flight of ideas or looseness of associations, his mood was euthymic and his affect was pleasant. His dress was appropriate and he was well groomed, and he denied hallucinations or delusions. He was given a number of psychological tests, one of which suggested a depressed mood, severe, with thoughts of suicide, although the veteran denied that he would commit suicide. His cognitive functioning was "well within normal limits," and another psychological test suggested an avoidant and borderline personality with a mixture of dysthymic mood and anxious features. Upon discharge, he was described as pleasant and cooperative, he was alert and oriented in all spheres, his speech was clear without flight of ideas or looseness of associations, his affect was pleasant with congruent euthymic mood, he denied homicidal and suicidal thoughts and he was described as being in excellent behavioral control. His Axis I diagnoses were polysubstance abuse and dependence, and history of dysthymia. His GAF score was 70. A January 1999 VA examination report indicated that the veteran was no longer abusing substances. He complained that he could not sleep, work, or concentrate because of back pain, and that he was "stressed out." He reported that he had been on leave for four months from his employer, due to back pain, and that he was "depressed all the time because of pain and the money problems it causes." The veteran admitted to remote homicidal thoughts but denied any such recent thoughts. He admitted to suicidal thoughts but strongly denied any intent. He was appropriately dressed and adequately groomed, his speech was fluent and spontaneous without flight of ideas or looseness of associations, his mood and affect were depressed, he denied hallucinations or delusions, he was oriented in three spheres, his memory was good, his judgment and his abstracting ability were adequate, and his insight was fair. The diagnosis was major depressive disorder recurrent, severe without psychotic features, and cannabis and alcohol abuse in sustained full remission. The GAF score was 60. At his June 1999 personal hearing before the undersigned Board Member, the veteran testified that "I get so depressed I want to blow my brains out." He said that his symptoms had worsened and that he had a loss of motivation, that he had no social life, that he would anger easily, and that his work had been affected. The veteran's mother testified that the veteran's condition had worsened. Under the regulations in effect when the appeal arose, a 30 percent evaluation for dysthymic disorder was warranted for definite impairment in the ability to establish or maintain effective and wholesome relationships with people. 38 C.F.R. § 4.132, Diagnostic Code (DC) 9405 (1996). The psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. Id. The Board notes here that VA's General Counsel has defined definite as "more than moderate but less than rather large." VAOPGCPREC 9-93 (O.G.C. Prec. 9-93). A 50 percent evaluation for dysthymic disorder was warranted when the ability to establish or maintain effective or favorable relationships with people was considerably impaired and, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels was so reduced as to result in considerable industrial impairment. The next higher rating of 70 percent was for application when the ability to establish and maintain effective or favorable relationships with people was severely impaired; the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. The Board notes that by regulatory amendment effective November 7, 1996, substantive changes were made to the schedular criteria for evaluating psychiatric disorders, including dysthymic disorder, as set forth at 61 Fed. Reg. 52695-52702 (1996) (codified at 38 C.F.R. §§ 4.125-4.130). The March 1996 rating decision was based on the regulations extant at the time. Where the law or regulations change while a case is pending, however, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Under 38 C.F.R. § 4.130, DC 9405, a 30 percent evaluation is warranted for dysthymic disorder resulting in 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 where the disorder manifests 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. A 70 percent rating is warranted where the disorder is manifested by 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 that is 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. Following a careful review of all the evidence, the Board finds that the evidence shows that the disability picture presented by the veteran's dysthymic disorder with a depressed mood more closely approximates definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with definite industrial impairment, than it approximates considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and considerable industrial impairment. The Board notes initially that, while the most recent VA examination report characterized the veteran's psychiatric disability as severe, the clinical findings from that examination do not substantiate such a conclusion. The report indicated that the veteran was able to attend junior College for two years, had been able to hold a job, and currently lived with his parents. The veteran indicated that it was his back pain that currently prevented him from working and caused him to stop attending classes, not any social or industrial impairment secondary to dysthymia. Nor does any of the earlier medical evidence indicate that the veteran's dysthymic disorder results in considerable social or industrial impairment. The GAF scores varied from 60, during the most recent examination, to 75. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) [hereinafter DSM-IV]. A GAF score of 61-70 denotes "some mild symptoms . . . OR some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful interpersonal relationships." DSM-IV. A GAF score of 71-80 denotes "no more than slight impairment." Id. In addition, the Board notes that, while the veteran testified that he had no friends, he was able to obtain statements from a number of individuals who described themselves as friends and who attested to the severity of his back disability. In view of the GAF scores of 60 to 75, the fact that the veteran does have a number of friends, and the fact that he has been able to work and attend classes until prevented from doing so by his back disability, the Board finds that, under the regulatory criteria in effect prior to November 7, 1996, the evidence indicates that the disability picture presented by the veteran's dysthymic disorder with a depressed mood more closely approximates definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with definite industrial impairment, than it approximates considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and considerable industrial impairment. Accordingly, an evaluation in excess of 30 percent is not warranted under the old criteria. Furthermore, the Board finds that the preponderance of the evidence is also against an increased evaluation under the current criteria. The evidence shows that dysthymic disorder with depressed mood is productive of no more than occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Indeed, while the veteran reported that due to his psychiatric disorder, he has problems relating to other people, he has few friends, and he suffers from paranoia, lack of trust in others, lack of self esteem, periodic confusion, a hair-trigger temper, and difficulty in concentrating, there was no clinical evidence of such symptoms, and, as noted above, the veteran had a number of friends who submitted affidavits on his behalf, he lived with his parents, and he was able to attend classes and to work until his back pain prevented him. While the veteran was observed to have a depressed mood with anxiety, there is no objective evidence of suspiciousness, panic attacks, or mild memory loss. The veteran did complain of sleep impairment. However, he indicated that this was due to back pain, not to his psychiatric disability. In view of such findings, as well as the GAF score of between 60 and 75, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent under the current regulations. Accordingly, the veteran's claim for an increased evaluation is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for a rating in excess of 30 percent for the veteran's dysthymic disorder must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER The reduction of rating for the veteran's low back strain with hamstring spasms superimposed on congenital scoliosis with severe limitation of motion, was legally improper; restoration of the 40 percent rating is, therefore, granted. An evaluation in excess of 40 percent for low back strain with hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion, is denied. An evaluation in excess of 30 percent for dysthymic disorder with a depressed mood is denied. REMAND In June 1997, the RO, among other things, denied a claim of entitlement to a total disability evaluation on the basis of individual unemployability (TDIU). In August 1997, the veteran wrote a letter to his United States Senator, stating that his service-connected disabilities prevented him from working. The letter was forwarded to VA. In October 1997, the RO notified the veteran that the letter had been accepted as a notice of disagreement to the June 1997 rating decision, stating that a Statement of the Case (SOC) would be issued "setting forth the reasons and bases for our decision." An SOC was subsequently issued in December 1997. This SOC, however, addressed only the issues of evaluations for the veteran's back and psychiatric disabilities. The issue of TDIU was not addressed. In view of the veteran's August 1997 NOD on this issue, the claim of TDIU is referred to the RO for issuance of an SOC. The Board also notes that the veteran has complained that hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion, interferes with employment. He maintains that because he is often bedridden for days due to back spasms, he has lost days from work, his business as a painter went bankrupt, he has been let go from jobs, and has been turned down for new jobs. He has also submitted statements from employers and physicians stating that he is unable to work due to his back disability. The Board finds that the issue of entitlement to an extra-schedular evaluation for hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion has been raised by the record. In addition, the Board notes that the veteran has not been notified of his ultimate responsibility for furnishing records supporting his claim that his service-connected disability interferes with employment. See Spurgeon v. Brown, 10 Vet. App. 197-98 (1997); see also 38 U.S.C.A. § 5103(a) (West 1991); 38 C.F.R. § 3.159(b)(c) (1998). Accordingly, in order to give the veteran every consideration with respect to the present appeal, and to ensure full compliance with due process requirements in light of recent Court holdings, it is the Board's opinion that further development of the case is required. Accordingly this case is REMANDED for the following action: 1. The RO must issue the veteran an SOC addressing its denial of the veteran's claim for entitlement to a TDIU. The veteran must also be informed of the procedure for perfecting his appeal. 2. The RO should inform the veteran that the ultimate responsibility for furnishing employment or other records in support of his claim that hamstring spasms superimposed upon congenital scoliosis, with severe limitation of motion, affects his employment, rests with the veteran. See Spurgeon v. Brown, 10 Vet. App. 194, 197 (1997). The veteran should be provided sufficient time to provide such records, or other evidence. 3. Following the procedure set forth at 38 C.F.R. § 3.321(b)(1), the RO should specifically document their consideration as to whether the veteran's claims for an evaluation in excess of 40 percent for low back strain with hamstring spasms superimposed upon congenital scoliosis warrants referral to the Director, Compensation and Pension Service for consideration of the assignment of an extra-schedular evaluation. 4. If the benefits sought on appeal are not granted, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. R. F. WILLIAMS Member, Board of Veterans' Appeals