BVA9402790 DOCKET NO. 92-54 677 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased evaluation for a left knee disorder, evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for an acquired psychiatric disorder, characterized as somatization disorder, evaluated as 30 percent disabling. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Colorado Veterans Affairs Division WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal of a rating decision in September 1989 by the Denver, Colorado, Regional Office (hereinafter RO). The veteran served on active duty from January 1944 to October 1945. The notice of disagreement was received at the RO in August 1990. The statement of the case was issued in December 1990. The substantive appeal was received at the RO in March 1991. A supplemental statement of the case was issued in April 1991. A hearing was held at the RO before a hearing officer in June 1991. A supplemental statement of the case was issued in October 1991. The case was docketed at the Board in January 1992. In May 1992 the Board remanded the case to the RO for further development of the evidence. Supplemental statements of the case were issued in January 1993 and July 1993. The case was returned to the Board in November 1993 and is ready for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his left knee disability is more severe than is reflected by the currently assigned evaluation. He further contends that he stopped working due to "nerves" and he is unable to return to work due to his mental and emotional status. 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. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claims. 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 claims. FINDINGS OF FACT 1. A left knee disability is primarily manifested by pain and cramping after prolonged sitting, without significant limitation of motion; it is productive of no more than moderate impairment. 2. An acquired psychiatric disorder, characterized as somatization disorder, is primarily manifested by fixation on bodily symptoms, with associated anxiety, irritability and restlessness; it is productive of no more than definite impairment. 3. The veteran has a high school education and reported that he attended two years of junior college; he has work experience as a crane operator and as a millwright; he last worked in 1984. 4. Service connection is in effect for an acquired psychiatric disorder, characterized as somatization disorder, evaluated as 30 percent disabling, and for a left knee disorder, evaluated as 20 percent disabling. 5. The veteran's service-connected disabilities do not preclude some form of substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular and extraschedular criteria for an evaluation in excess of 20 percent for a left knee disorder are not met. 38 U.S.C.A. §S 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.40 and Part 4, Codes 5003, 5010, 5257, 5260, 5261 (1993). 2. The schedular and extraschedular criteria for an evaluation in excess of 30 percent for an acquired psychiatric disorder, characterized as somatization disorder, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.303(c), 3.321(b)(1), 4.20, 4.130 and Part 4, Code 9402 (1993). 3. The veteran is not unemployable solely by reason of service- connected disabilities. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that we have found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Service medical records disclose that in September 1945 the veteran was admitted to a dispensary with complaints of stomach pain, vomiting and weight loss of 25 pounds since boot camp. On neuropsychiatric examination the veteran was apprehensive, "spiritless" and bashful; as a child, he had been timid and avoided other children; twice before service in 1943 he had been hospitalized for abdominal pain; he complained of chest pain and knee pain. The diagnosis was personality disorder. A medical board found that a personality disorder existed prior to service and was not aggravated in service; they recommended the veteran's separation from service, which was accomplished in October 1945. Service medical records are negative for any complaint, diagnosis or treatment of a knee injury. A rating decision in November 1945 granted service connection for a personality disorder, rated as psychoneurosis, anxiety state, as having been aggravated by service. In October 1946, D. W. Boyer, M.D., reported that he had seen the veteran in June 1946; the veteran gave a history of slipping and falling on the deck of a Navy ship, injuring his left knee; X-rays showed an old healed fracture of the left patella with roughness under its surface. In October 1946 R. H. Finney, M.D., reported that he had seen the veteran in October 1946; the veteran complained of vomiting after meals since boot camp in January 1944. The diagnosis was psychoneurosis. At an interview for an industrial history in January 1947 the veteran stated that since March 1946 he had been working as an overhead crane operator for the Colorado Fuel and Iron Corporation. At a VA surgical examination in January 1947 diagnoses included traumatic arthritis of the left knee. At a VA neuropsychiatric examination in January 1947 the veteran stated that he was single and lived with his mother; he had trouble keeping food down. A neurological examination was negative. On mental status examination the veteran was fixated on his gastrointestinal complaints; he was emotionally unstable under slight stress; he was uncomfortable around other people. The diagnosis was psychoneurosis, anxiety type. The examiner remarked that the veteran had the usual physiological concomitants of anxiety. At a VA neuropsychiatric examination in February 1949 the veteran complained of gastric upsets and vague abdominal pains and restless sleep; he was prone to anxiety and worrying; he was fixated on his gastrointestinal system. The diagnosis was psychoneurosis, anxiety reaction. In March 1949 the veteran's commanding officer and two sailors who served with him verified that he had injured his left knee during service. A rating decision in March 1949 granted service connection for arthritis, traumatic, left knee. In April 1949 the veteran's work supervisor stated to a VA social worker that the veteran's adjustment to other employees was adequate; he had occasional nervous episodes when he complained about his health. The veteran stated that he had a fear of crowded places and strangers; he was engaged to be married; he complained of stomach and left knee pain and insomnia. A nurse at a hospital associated with the veteran's employer stated that four private physicians all felt that the veteran's difficulty was primarily psychoneurotic. The VA social worker concluded that the veteran needed psychotherapy. At a VA facility in March 1952 the veteran underwent surgical removal of an osteochondritic body from his left patella. A psychiatric consultant found very little justification for a diagnosis of psychoneurosis. He rendered a diagnosis of passive dependency reaction, manifested by anxiety, indecisiveness, dependency, and a voracious appetite. At the time of a VA social service report in March 1952 the veteran was still working as a crane operator, which he considered "nerve-racking" work; his supervisor stated that he was a steady worker and got along with the other men. The veteran complained of left leg pain and a "nervous stomach"; he had trouble falling asleep; he went with his wife to the theater and nightclubs. The social worker concluded that the veteran handled his job and personal responsibilities well, but lived in a state of tension. At the time of a VA social service report in April 1954 the veteran was still working as a crane operator but was concerned about the security of his job due to being away from work for left leg and stomach problems; he had trouble falling asleep and staying asleep. He had no hobbies and belonged to no organizations; he went on trips and activities with his wife. He stated that he had marital trouble; his wife spent most of her time with her relatives; she was displeased with him due to a problem of impotence which he attributed to a spinal injection which he had received at the time of knee surgery. The VA social worker concluded that the veteran's job adjustment was fair and his home adjustment was poor. At a VA neuropsychiatric examination in April 1954 the veteran stated that he was tense and easily irritated; on mental status examination his thought content revealed a restless, immature individual. The diagnosis was anxiety reaction, chronic. VA X-rays of the left knee in August 1960 showed ossification of the left patella. At a VA orthopedic examination in August 1960 the veteran complained of severe pain in his left leg after prolonged standing. On examination he had a slight limp; there was no atrophy of the left leg; he could crouch and arise with no observable difficulty but he complained of weakness in his left lower extremity. Diagnoses included osteochondromatosis, left knee, recurrent, markedly symptomatic. At a VA neuropsychiatric examination in August 1960 the veteran stated that he had been demoted from crane operator to common laborer, a position which he detested because of his tension and easy fatigability; he complained of gastrointestinal upsets and nervousness. He and his wife had two children. He had not received any medical treatment since 1954. On mental status examination he was a hostile individual; insight was lacking. On neurological examination the veteran was slow to comprehend directions. The diagnosis was anxiety reaction, chronic, with precipitating stress and predisposing personality not determined. In December 1975 a private radiologist reported that X-rays showed ununited fragments of the superior portion of the left patella. In September 1976 Dale W. Hayhurst, M.D., a private orthopedist found that the veteran had arthritis of the left knee and ankle and bursitis of the left heel. In March 1977 R. H. McIlroy, M.D., reported that the veteran's most prominent problem was impotence. He also had obesity and arthritis of his back, hips, legs, and feet. At a VA psychiatric examination in August 1977 the veteran stated that his present work assignment was as a millwright, a position which he disliked; he had always been nervous and irritable; he reported chronic arguments with his wife; he had been impotent for seven years; his general unhappiness disturbed his sleep. On mental status examination he was extremely anxious, a chronic complainer who seemed to be a misfit at his work; he showed no evidence of psychosis, a mood disorder or thought disturbance; he had a lot of resentment and rage; he tended to blame the outside world for his problem; his intelligence was above average but his insight was superficial; there was no evidence of memory deficits or organic disturbances; he was in a chronic state of anxiety and dissatisfaction. Diagnostic impressions included: Conversion reaction with chronic anxiety and depressive features; and passive- aggressive personality. At a VA orthopedic examination in August 1977 diagnoses included chronic postoperative residuals of the left knee, with traumatic arthritis and chondromalacia of the left patella. In April 1986 Dr. McIlroy reported that the veteran had had a myocardial infarction in January 1986. In April 1989 the veteran sought admission to a VA medical center for anxiety and fearfulness; he said he was tense and nervous due to stress; he had a history of chronic anxiety secondary to medical problems and to his relationship with his wife. On mental status examination the veteran was obsessed with illness; he had a high level of anxiety; he did not present signs of a major mental disorder; he complained of frequent chest pains. He also had prostate problems; he had had cataract surgery. The veteran stated that he had been screaming at his wife for no reason and hospitalization would allow a respite for everyone concerned. He was transferred to a VA nursing home care unit, where he responded well to medication and treatment; psychological testing showed a mild generalized cerebral dysfunction; the veteran was retired and needed to participate in activities; after he received new dentures, he requested a discharge. Diagnoses included: Anxiety reaction; glaucoma, status post cataract surgery and myopia; obesity; gouty arthritis; coronary artery disease; and a bipartite patella, left knee. In January 1989 at a VA outpatient clinic the veteran complained of dizzy spells. In March 1990 he complained of fear and restlessness; he stated that he was thinking about suicide. In 1989 and 1990 he received medications for anxiety and depression. He claimed to have become disabled from working in 1984. He submitted a letter from Robert W. Dingle, M.D., who stated that he was going to send a medical summary to the veteran's lawyer with his opinion that the veteran was sufficiently disabled to be unemployable. At a hearing in June 1991 the veteran testified that: When he was sitting, the muscles of his left leg and knee would cramp and he would then have to walk slowly to get moving again; he had pain and swelling of the left knee; now and then he used a cane or walker for assistance; he believed that a spinal injection for knee surgery in 1954 had caused him to become impotent. (The Board notes at this point that the veteran reported to VA in 1978 that he was the father of three children born in 1957, 1959 and 1967.) The veteran testified further that: He had anxiety and depression; he took Ativan at bedtime to help him sleep; it took him a half hour to an hour and a half to fall asleep; many times he would wake up during the night; every day he screamed at his wife and their grandson, who was with them during the day; his emotional problems would interfere with holding a job; he quit work in 1984 at age 58 years because of "nerves"; he went to church only on Christmas; he used to go to Disabled American Veterans meetings but the meeting were suspended due to low attendance; his hobbies were making fishing sinkers, and, once in a while, tooling leather; he had been going to a VA outpatient mental health clinic; he had been trying to get Dr. Robert Dingle to send copies of his office notes to VA and to his lawyer; other people didn't want to associate with him because he had a different outlook on life; since he quit work in 1984, he had not tried to get another job. The veteran was asked by the hearing officer if he was convinced that he was not able to do any type of work. The veteran's reply was in the negative; he stated that he was able to "keep up" his home and yard. The veteran went on to testify that: He last used a cane 11 months earlier; his activities included yard work, doing laundry, washing dishes and the like. He went to VA facilities with other veterans when they had appointments; despite eye problems, he could still drive a car; his psychiatric status was getting worse in that being around other people made him nervous; he got a letter from Dr. Dingle apologizing for not sending his records after he filed a complaint with the State agency which licensed doctors. VA outpatient treatment records in 1990 and 1991 showed treatment for: Degenerative joint disease; glaucoma; arteriosclerotic heart disease; anxiety and depression; a prostate problem; skin problems; pain in the right leg and left knee. In June 1992 the veteran wrote to the RO and stated that he was unable to travel from Pueblo, Colorado, to Denver, Colorado, for a medical examination due to poor eyesight. At a VA psychological evaluation in July 1992 testing revealed the veteran's full-scale intelligence quotient as 85-87, which was in the low average range; his immediate recall was in the 27th percentile for his age group; his delayed recall was in the 30th percentile, which showed impairment of memory; his test performance was moderately poor in all areas; he tended to exaggerate his physical and psychological complaints; during an interview he appeared neither extremely anxious nor profoundly depressed; his clinical records suggested longstanding personality problems including somatic preoccupation and passive-dependent traits. The examining psychologist concluded that: The veteran had at least a mild cognitive impairment, which might be lifelong or the result of an early dementing process or occupational exposure to toxins; he had no psychotic process; he appeared to have a somatization disorder; his recent psychological disturbance was related to marital conflict in the context of retirement from the work force by both the veteran and his wife; the veteran was focusing on his cognitive symptoms in the same way that he had always focused on his physical symptoms. At a VA psychiatric examination in July 1992 the veteran stated that: His marital disharmony continued; he no longer went to Disabled American Veterans meetings but recently he went to an Elks meeting. On mental status examination the veteran was well oriented; he talked incessantly of past and present somatic concerns and preoccupations; he was restless, suspicious and distrustful; he was irritable but not extremely anxious or significantly depressed; he denied being suicidal, saying he was "scared to die"; he was fixated on his bodily functions and elaborated his physical complaints; he had no thought disorder; he was very insecure and faultfinding; he had many passive-dependent tendencies and lacked insight into his condition. The psychiatric examiner concluded that the veteran had a somatization disorder with associated anxiety, irritability and restlessness; he did not diagnose cerebral dysfunction. VA outpatient treatment notes from September 1991 to September 1992 showed treatment for: Marital maladjustment; degenerative joint disease of the shoulder; congestive heart failure; chronic obstructive pulmonary disease; skin problems; glaucoma; obesity; anxiety and hyperventilation; pain in the legs, right hip and back. Most of the veteran's outpatient visits were to the dermatology service. The veteran submitted a noted from a Dr. Thickman addressed "To Whom It May Concern" and dated in September 1992, which advised the veteran to go to the VA Medical Center in Sheridan, Wyoming, for psychiatric problems. A hospital summary from the VA Medical Center in Sheridan, Wyoming, showed that the veteran was admitted in September 1992 with complaints of increasing anxiety, depression, paranoia, and insomnia. The veteran was transferred to a medical unit for treatment of pneumonia. He was then transferred to the VA Medical Center in Salt Lake City in Utah, where in December 1992, he underwent a transurethral resection of the prostate gland; he was then returned to the VA facility in Wyoming, where he stated that he came to the hospital to get away from his wife; he had been in jail one year earlier for hitting her; they had had no sex for 15 years. He had a great many somatic complaints. He was given a leave of absence from late January 1993 to mid-February 1993 and returned in good condition; he wanted to leave during the middle of March 1993 and was allowed to do so. I. Left Knee 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. Part 4. Separate diagnostic codes identify the various disabilities. Diagnostic Code 5010 provides that arthritis due to trauma shall be evaluated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis shall be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved; where, as in the veteran's case, there is no significant limitation of motion, a rating of 10 percent is for application. Diagnostic Code 5257 provides that an evaluation of 10 percent is warranted for slight impairment of a knee, with recurrent subluxation or lateral instability; a 20 percent evaluation requires moderate impairment; a 30 percent evaluation requires severe impairment. In the veteran's case, the record shows that he has taken pain medication in recent years for complaints of pain not only in his left knee but also in other joints. He testified at the hearing in June 1991 that he had not used a cane for almost a year and that he was able to do housework and yard work, which indicates that he does not suffer from severe impairment of the left knee, as someone with a severely disabled knee would not be able to perform such activities on a continuing basis. Accordingly, an increased evaluation for a left knee disability is not in order. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.40 and Part 4, Codes 5003, 5010, 5257, 5260, 5261. II. Psychiatric Disorder A somatization disorder is rated as analogous to a conversion-type disorder. 38 C.F.R. § 4.20. Diagnostic Code 9402 provides that a 30 percent evaluation is warranted for a conversion neurosis when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people and when psychoneurotic symptoms result in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment; a 50 percent evaluation requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. 38 C.F.R. Part 4, Code 9402. 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 a decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, VA's 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". 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). With these considerations in mind, the Board will address the merits of the claim at issue. The Board also notes that personality disorders as such are not disabilities within the meaning of applicable legislation concerning disorders for which service connection may be granted. 38 C.F.R. § 3.303(c). The veteran's service-connected psychiatric disorder was variously classified over the years as psychoneurosis, anxiety state, or anxiety reaction, and conversion reaction with anxiety and depressive features. The current classification is somatization disorder, that is, the conversion of a mental state into bodily symptoms, with associated anxiety, irritability and restlessness. Although he testified that he quit working in 1984 due to "nerves", the veteran received neither outpatient nor inpatient psychiatric treatment at that time. When he admitted himself to a VA psychiatric ward in 1989, he did not have symptoms of a major mental disorder but he did have signs of cerebral dysfunction. A psychological evaluation in 1992 showed a mild cognitive impairment. Both a VA psychologist and a VA psychiatrist who evaluated the veteran in 1992 found that he was not extremely anxious or significantly depressed and he had no thought disorder. By his own admission, the veteran wanted to be hospitalized in late 1992 and early 1993 primarily to get away from his wife; treatment for pneumonia and prostate surgery, rather than the severity of his psychiatric status prolonged his period of hospitalization. As noted by the VA psychologist in 1992, the veteran's psychological disturbances primarily related to the difficulty that he and his wife have both had adjusting to being around each other all the time since they both retired. Keeping in mind that the veteran's avoidance of other people and tension in their presence is a lifelong trait, we are unable to say that his somatization disorder, that is, his fixation on bodily complaints, produces more than a "moderately large" or definite social and industrial impairment. Accordingly, an increased evaluation for an acquired psychiatric disorder, characterized as somatization disorder is not warranted. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.130 and Part 3, Code 9402. This case does not present an exceptional or unusual disability picture, with such related factors as frequent hospitalizations for treatment of service-connected disabilities or marked interference with employment by such disabilities, so as to render impractical the application of regular schedular standards. Extraschedular evaluations are thus not in order. 38 C.F.R. § 3.321(b)(1). III. Unemployability Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). After a careful review of the record, we find that neither the veteran's left knee disability nor his somatization disorder are singly, or in combination, so severe as to preclude all forms of substantially gainful activity. With regard to his left knee, the veteran has only a moderate disability which does not prevent him from moving around; his level of left knee pain would not make it impossible for him to work. With regard to his psychiatric status, the veteran does have a definite impairment but not one which is so overwhelming as to prevent him from participating in the work force. Indeed, at the hearing in June 1991 the veteran stated that he was not convinced that he was unable to do any type of work. If the veteran has become totally unemployable in recent years, we find that nonservice-connected physical disabilities rather than his service-connected psychiatric disorder or his left knee disorder are the cause. We note that the veteran has developed the following nonservice-connected disabilities: Arthritis in joints other than the left knee; defective vision, which he stated would prevent him from driving from Pueblo, Colorado, to Denver, Colorado; a gastrointestinal disorder; arteriosclerotic heart disease, status post myocardial infarctions, and congestive heart failure; status post prostate surgery; chronic obstructive pulmonary disease; and a cognitive deficit of unknown etiology. In sum, it is the veteran's underlying nonservice-connected physical disabilities rather than his fixation on them (somatization disorder) which is the principal reason that it would be difficult for him to return to work. The veteran is thus not entitled to a total disability evaluation based on individual unemployability solely to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. While we have considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issues on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER An increased evaluation for a left knee disorder is denied. An increased evaluation for an acquired psychiatric disorder, characterized as somatization disorder, is denied. A total disability evaluation based on individual unemployability due to service-connected disabilities is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * B. KANNEE ALBERT D. TUTERA *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.