BVA9413521 DOCKET NO. 91-37 400 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for a right below-the-knee amputation, currently rated as 60 percent disabling. 2. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for a low back disability, rated as 10 percent disabling prior to January 13, 1992, and 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from December 1966 to July 1968. This appeal comes to the Board of Veterans' Appeals (Board) on appeal of a July 1990 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the evaluation for a service- connected below-the-knee amputation of the right leg was increased from 40 percent to 60 percent disabling; service connection was established for PTSD, evaluated as 10 percent disabling; and service connection was established for a low back disorder, evaluated as 10 percent disabling. The veteran appealed for increased ratings. The case was remanded by the Board in July 1992. In a January 1993 rating decision, the RO increased the evaluation for PTSD to 30 percent, effective the date of the initial grant, and the evaluation for the low back disability was increased to 20 percent, effective January 13, 1992. The RO also granted a total rating based on individual unemployability, an issue referred by the Board in its July 1992 remand. The case was returned to the Board in June 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his PTSD, right leg amputation, and low back disorder are more disabling than evaluated by the RO. It is pointed out that a VA psychiatrist has characterized the veteran's PTSD as severe, which corresponds to a 70 percent disability rating. It is asserted that a higher evaluation is warranted for the right leg amputation because repeated ulcerations on the stump make wearing a prosthesis difficult and cause considerable pain. 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 claims for an increased rating for a right below-the-knee amputation, PTSD, and a low back disability prior to January 13, 1992. It is also the decision of the Board that the evidence supports an increased rating, to 40 percent, for the low back disability, effective January 13, 1992. FINDINGS OF FACT 1. The veteran has repeated ulceration of his right below-the- knee amputation that often prevents improvement by a prosthesis; the veteran receives the maximum schedular rating of 60 percent for this disability, and his case does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular rating standards. 2. PTSD is productive of no more than definite impairment of social and industrial adaptability. 3. Prior to January 13, 1992, lumbosacral strain with degenerative changes was manifested by characteristic pain on motion, and no more than slight limitation of motion. 4. Since January 13, 1992, lumbosacral strain with degenerative changes has been productive of severe limitation of motion. CONCLUSION OF LAW 1. The criteria for a rating in excess of 60 percent for a right below-the-knee amputation have not been met. 38 U.S.C.A. §1155; 38 C.F.R. § 3.321, and Part 4, Codes 5163, 5164. 2. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §1155; 38 C.F.R. Part 4, Code 9411. 3. The criteria for a rating in excess of 10 percent for lumbosacral strain with degenerative changes, prior to January 13, 1992, have not been met. 38 U.S.C.A. §1155; 38 C.F.R. Part 4, Codes 5292, 5295. 4. The criteria for a rating of 40 percent for lumbosacral strain with degenerative changes, effective from January 13, 1992, have been met. 38 U.S.C.A. §1155; 38 C.F.R. Part 4, Codes 5292, 5295. REASONS AND BASES FOR FINDINGS AND CONCLUSION It is initially noted that the veteran's claims on appeal are well grounded; that is, they are not inherently implausible. 38 U.S.C.A. § 5107(a). We also find that the facts relevant to the issues on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. Id. I. Factual Background Service medical records show that in January 1968, while serving in Vietnam, the veteran sustained multiple shrapnel wounds to the right leg and other areas. He underwent a below-the-knee amputation of the right leg. He was fitted with an artificial limb. Service connection for this disability was established, and a 40 percent rating assigned, by rating decision of the RO, effective with the veteran's July 1968 discharge from service. A September 1989 statement was received from H. Parekh, M.D. He stated that the veteran had frequent right leg stump irritation and ulceration and was advised to take three consecutive days off work per week to give the leg a chance to heal. The doctor said the veteran could work four days per week, 10 hours per day, for a 40 hour week. On January 8, 1990, a claim was received from the veteran, requesting various compensation benefits, including an increased rating for his right leg amputation, and service connection for a back disorder and PTSD. A compensation examination was performed by the VA in March 1990. The veteran complained that his amputation stump was defective and he could not take pressure on it, and his artificial leg did not fit properly. He also complained of a low back condition as a result of his leg amputation, and that he had PTSD. Examination disclosed a right below-the-knee amputation with 14 inches of tibia remaining. The stump showed deep clefts and grooves in the tissues. The base of the stump was thickened and tender with cauliflower-like skin. The skin margins where the clefts rubbed against each other were moist and macerated. (Photographs of the stump are attached to the examination report.) It was noted that when he stood after putting on his limb, the right iliac crest was at least 2 inches higher than the left. Low back flexion to the right and left was to 25 degrees and anterior flexion was to 85 degrees. The maneuvers were performed with pain. X-ray studies showed degenerative arthritis and disc disease of the lumbar spine. The impressions were inadequate stump on the amputation site, inadequate prosthesis, and lumbosacral strain and degeneration. The veteran was also given a psychiatric examination for compensation purposes by the VA in March 1990. It was reported that he was medically retired from service in 1968 due to his wounds. He had been married since 1969 and had two children. His work history revealed that he had had two jobs, the first with Douglas Aircraft and the second, since 1975, with the Postal Service. It was reported that he had first sought psychiatric counseling in 1977 at which time he was having anxiety and panic attacks and difficulty with alcohol and drugs. He reportedly had recurrent intrusive recollection of service events, with dreams and flashbacks. He had an anniversary date (the date he received his combat wounds) on which he made various attempts to overcome the feelings of that day. He had a restricted range of affect and estrangement from others. He had limited his contacts mostly to his wife and children and one non-veteran friend. He had social difficulty, even with his parents. He avoided activities or situations that aroused recollections of the trauma, such as riding in an elevator, which reminded him of helicopters, and refused to fly. He had persistent symptoms and showed irritability, hypervigilance and a startle response. On mental status examination, the veteran was polite, cooperative, alert and oriented. His affect and mood was one in which he was mildly depressed and showed anger. Memory was grossly intact. Judgment and insight appeared to be intact. The diagnoses were PTSD and history of anxiety and panic attacks. By rating decision in July 1990, the RO increased the evaluation of the veteran's right leg amputation from 40 percent to 60 percent. The RO granted service connection for PTSD, and rated it 10 percent, and granted secondary service connection for the low back disability (lumbosacral strain with degenerative changes), rated 10 percent. All benefits were effective with the veteran's January 8, 1990 claim. In a statement, dated in January 1991, Dr. Parekh related that the veteran had traumatic ulceration that were healing slowly. VA outpatient treatment records, dated from January to March 1991, show that the veteran was treated at the orthopedic clinic for break down and fissuring of his amputation stump. It was recommended that he continue to use crutches and remain non- weight bearing. When last examined, it was noted that the veteran had some left leg and low back pain on addition to the fact that the stump was breaking down and causing pain. He had no tenderness of the back. The diagnoses were left knee pain, status post below-the-knee amputation and degenerative joint disease of the lumbar spine. A hearing was conducted at the RO in March 1991. The veteran and his wife testified concerning the disabilities at issue. He described symptoms of his amputation stump and related that he was unable to wear his prosthesis on many occasions. He said he had been issued crutches and a wheelchair by the VA. He also stated that he had constant pain and muscle spasm in his low back. He related some of his PTSD symptomatology, and said he was taking prescribed medication for this problem. The veteran described time lost from his post office job, and problems with social relationships. His wife detailed her observations of his disabilities. An orthopedic examination was performed by Steven M. Ma, M.D., in March 1991, for the purpose of determining fitness for work at the veteran's post office job. The veteran recounted problems with ulcerations of his amputation stump, which caused him to lose time from work. He stated that he was eager to return to work, and would not mind using a wheelchair. Examination of the right leg, with the prosthesis off, showed evidence of a skin graft about the right leg stump. There was some thickened callus with scattered sores about the right stump tip. There was some right thigh atrophy. The impression was status post right short below-the-knee amputation. The examiner felt the veteran could return to work if he used a wheelchair. An April 1991 letter from the post office indicates that the veteran could return to work, with special accommodations for using a wheelchair. Outpatient treatment records of Dr. Parekh show that the veteran was seen on January 13, 1992 when he hurt his back at work. It was reported that he was in a wheelchair and had to kick a door open causing a "pop" in the back. Tenderness and muscle spasm were noted. An X-ray study and CT scan were obtained, and these showed significant degenerative disc disease and arthritis of the lumbosacral spine. In a February 1992 statement, Dr. Parekh said that the veteran had severe backache and had been advised to be off work since January 13, 1992. Additional outpatient records from this doctor show the veteran was repeatedly seen for back symptoms from January to March 1992. In March 1992, the assessment was back sprain and strain. The outpatient records also describe a right leg amputation stump infection. A compensation examination was performed by the VA in October 1992. The veteran complained of back pain that he associated with altered ambulation secondary to his right below-the-knee amputation. He said the pain increased with sitting, bending and lifting, and there were radicular symptoms of both lower extremities. He stated he had numbness of the lateral three toes on the left side, which was increased with the onset of his radicular symptoms. He said he had been offered surgical treatment for his low back, but had declined. On examination, forward flexion was to 20 degrees, and backward extension was to 10 degrees. Straight leg raising while sitting was negative to 90 degrees. There was no evidence of atrophy or weakness of the left lower extremity. His right lower extremity was remarkable for the bony amputation with well-padded stump. Deep tendon reflexes were 1+ in the left knee and ankle. Sensation was decreased in the entire left lower extremity, progressively decreased with more distal examination. X-ray studies were remarkable for a degenerative disc disease throughout the lumbosacral spine and marked osteophyte formation. The diagnoses were right below-the-knee amputation and moderate degenerative joint disease of the lumbosacral spine, with possible stenosis. A social and industrial survey was performed by the VA in October 1992. It was reported that the veteran had been married since 1969 and had two children. His first job following service was as a truck driver. He said he began working for the Postal Service as a clerk in 1975 and was placed on disability due to increased leg and back pain as well as increased anxiety and depression in January 1992. Psychiatric treatment several years earlier, but not recently, was described. He stated that he felt depressed and "on the edge" most of the time. He refused to use elevators because of his anxiety and used the stairs regardless of the amount of time and energy such use required. He stated that his wife was the only person he trusted. He said he was a light sleeper and avoided anything that might remind him of Vietnam. The veteran said he still thought of Vietnam every day. He gave a history of nightmares, although he reported his last nightmare occurred approxi-mately one year ago. He said the for the past one and one-half years he had felt unable to deal with people. The veteran related that he was easily agitated and had panic attacks with hyperventilation and chest pain. He said he had thoughts of suicide several times. The impression of the social worker was that the veteran's ability to maintain employment and interact socially was severely impaired. The examiner noted that contact with other people was limited to his wife and children. It was commented that his inability to deal with people as a result of his PTSD symptoms along with the constant leg and back pain appeared to substantially interfere with any employment. A psychiatric examination was performed by the VA in October 1992. The veteran reported that in April 1991 he had severe suicidal thoughts, but he eventually calmed down after his wife had called the police and a doctor. He stated that his job was terminated in January 1992. He stated that he slept in the front of his house so that he could protect his family. He said that he had bottled things up and was afraid to let things out because he was afraid he would lose control. On mental status examination, he was pleasant and cooperative, but quite agitated. He spoke in a loud tone of voice, was extremely anxious and concerned about his physical and emotional condition, the stress he was under because he was not working, his physical pain and the possibility of having more surgery. He admitted that he had had an increase in his alcohol intake. He was taking Desyrel, the dosage having been increased. His memory was good and there was no evidence of any thought disorder. Insight and judgment were intact and cognitive ability was grossly intact. The diagnostic impression was PTSD, chronic, severe, and history of anxiety and panic. A January 1993 RO decision denied an increase in the 60 percent rating for the right leg amputation; increased the PTSD rating from 10 percent to 30 percent (effective January 8, 1990); and increased the rating for the low back disability from 10 percent to 20 percent (effective January 13, 1992). The RO also granted a total compensation rating based on individual unemployability. II. Analysis 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. A. Right Below-the-Knee Amputation Amputation of the leg warrants a 60 percent evaluation when the nature of the amputation is such that the disability is not improveable by a prosthesis controlled by natural knee action or where the stump is defective and further amputation involving the thigh is recommended. 38 C.F.R. Part 4, Codes 5163, 5164. A 60 percent rating is also warranted for amputation at the middle or lower thirds of the thigh. Code 5162. Amputation of a lower extremity at the upper third of the thigh warrants an 80 percent evaluation if the point of amputation is at or above a point one- third of the distance from the perineum to the knee joint, measured from the perineum. Code 5161. The record shows that the veteran is often unable to use his prosthesis for ambulation. He has complications of the stump that cause intermittent fissuring and breakdown of his stump that require him to use crutches or a wheelchair. However, a higher schedular evaluation requires that he have an amputation at the upper third of the thigh. The veteran receives the maximum schedular rating for an amputation below the knee. Under these circumstances, a higher schedular rating is not warranted. Neither does the evidence show that the disability is so exceptional or unusual as to render the application of the regular schedular rating standards impractical. When last examined by the VA, in October 1992, his stump was reported to be well padded, indicating that the complications for which the 60 percent rating was awarded are intermittent. While this is severe disability, it is properly compensated by the 60 percent schedular rating, and an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). B. PTSD A 30 percent evaluation requires definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impermanent. A 50 percent evaluation is warranted for PTSD where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where the reliability, flexibility, and efficiency levels are so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Code 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 recent precedent opinion, the General Counsel of VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). With this consideration in mind, the Board will address the merits of the claim at issue. The veteran maintained the same employment from 1975 to 1992, when he was placed on disability primarily due to physical conditions involving his low back and leg amputation. (The veteran was also awarded a total, unemployabilty rating by the VA at that time.) His PTSD symptoms appear to have worsened to some extent in recent years, as acknowledged by the RO in raising the rating to 30 percent, but in our judgment more than definite impairment is not now shown. The veteran reports hypervigilence, anxiety, depression, and nightmares as some of the major symptoms of his PTSD. He states that he only trusts his wife, and reports limited contacts outside his immediate family. However, social inadaptability is to be evaluated only as it affects industrial adaptability. 38 C.F.R. § 4.129. As noted, the veteran was able to maintain employment until forced to stop due to physical disability. The 1992 examination report suggests that some of the veteran's PTSD symptoms are infrequent. There is some indication that the veteran takes prescribed psychotropic medication, but apparently he has received no recent psychotherapy. The absence of any recent therapy program tends to indicate the disability is fairly well controlled and has not increased in severity beyond the 30 percent level. While the recent VA psychiatric examiner characterized the condition as severe, this is not corroborated by treatment records and is not controlling for rating purposes. 38 C.F.R. § 4.130. In the judgment of the Board, the evidence as a whole does not portray psychoneurotic symptoms of a magnitude which would produce a considerable degree of social and industrial impairment within the meaning of Code 9411. Rather, the preponderance of the evidence shows no more than a definite degree of social and industrial impairment from PTSD, which is properly rated 30 percent. Thus, an increased rating must be denied. The Board recognizes the significant stressor (major combat wounds) which led to the veteran's PTSD, and he should understand that if his psychiatric condition deteriorates he may file another claim for an increased rating. C. Low Back Disorder A 10 percent evaluation is warranted for lumbosacral strain where there is characteristic pain on motion. A 20 percent evaluation requires muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Code 5295. Slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation. A 20 percent rating requires moderate limitation of motion. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, Code 5292. 1. Rating prior to January 13, 1992 The veteran's low back disorder was service connected, effective with his January 1990 claim, as being proximately caused by his service-connected right leg amputation. A 10 percent rating was initially assigned, which the veteran appealed. Medical records show that on examination by the VA in March 1990, the veteran was able to flex forward to 85 degrees and flex laterally to 25 degrees. While pain was reported, no muscle spasm was reported. On examination in March 1991, no tenderness of the low back was detected. The preponderance of the evidence shows that prior to January 13, 1992 the low back disability was manifested by slight limitation of motion and characteristic pain on motion. This was properly rated 10 percent under the cited diagnostic codes. 2. Rating since January 13, 1992 Medical records show that on January 13, 1992 the veteran sustained an injury of his low back which increased his disability. (The RO increased the rating to 20 percent from that date.) Muscle spasm was immediately noted. Diagnostic studies showed significant disc disease and arthritis of the low back, and the veteran continued with regular treatment from his physician. When examined by the VA in October 1992, forward flexion was to only 20 degrees and backward extension was to only 10 degrees. We consider such limitation to be severe. As such, we find that, since January 13, 1992, a 40 percent evaluation is warranted under either Code 5292 or 5295. A 60 percent rating may be assigned for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. Part 4, Code 5293. While the veteran has been diagnosed as having degenerative disc disease, which causes intervertebral disc syndrome, the record does not show evidence of pronounced impairment. On examination by VA in October 1992, straight leg raising was negative to 90 degrees and an ankle jerk was present on the left. While he did have muscle spasm, this has been contemplated within the 40 percent rating that we have assigned. Therefore, a rating in excess of 40 percent is not warranted. ORDER Increased ratings for a below-the-knee amputation of the right leg, PTSD, and a low back disorder prior to January 13, 1992, is denied. An increased 40 percent rating for a low back disorder, effective from January 13, 1992, is granted. L. W. TOBIN 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.